[House Report 107-785]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-785

======================================================================



 
                    FAMILY REUNIFICATION ACT OF 2002

                                _______
                                

 November 14, 2002.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1452]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1452) To amend the Immigration and Nationality Act 
to permit certain long-term permanent resident aliens to seek 
cancellation of removal under such Act, and for other purposes, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     7
Background and Need for the Legislation..........................     7
Hearings.........................................................    12
Committee Consideration..........................................    12
Vote of the Committee............................................    12
Committee Oversight Findings.....................................    13
Performance Goals and Objectives.................................    13
New Budget Authority and Tax Expenditures........................    13
Congressional Budget Office Cost Estimate........................    13
Constitutional Authority Statement...............................    14
Section-by-Section Analysis and Discussion.......................    14
Changes in Existing Law Made by the Bill, as Reported............    20
Markup Transcript................................................    28
Dissenting Views.................................................    87
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Family Reunification Act of 2002''.

SEC. 2. CANCELLATION OF REMOVAL FOR LONG-TERM PERMANENT RESIDENT 
                    ALIENS.

    Section 240A(a) of the Immigration and Nationality Act (8 U.S.C. 
1229b(a)) is amended to read as follows:
    ``(a) Cancellation of Removal for Certain Permanent Residents.--
            ``(1) Permanent residents not convicted of any aggravated 
        felony.--The Attorney General may cancel removal in the case of 
        an alien who is inadmissible to, or deportable from, the United 
        States, if the alien--
                    ``(A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    ``(B) resided in the United States continuously for 
                7 years after having been admitted in any status; and
                    ``(C) has not been convicted of any aggravated 
                felony.
            ``(2) Permanent residents convicted of a nonviolent 
        aggravated felony.--The Attorney General may cancel removal in 
        the case of an alien who is inadmissible to, or deportable 
        from, the United States, if the alien--
                    ``(A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    ``(B) satisfies the residence requirements of 
                paragraph (6);
                    ``(C) has never been convicted of--
                            ``(i) an act of murder, rape, or sexual 
                        abuse of a minor;
                            ``(ii) any crime of violence (as defined in 
                        section 16 of title 18, United States Code); or
                            ``(iii) an attempt or conspiracy to commit 
                        an offense described in clause (i) or (ii);
                    ``(D) has been convicted of--
                            ``(i) a single aggravated felony for which 
                        the alien was sentenced to serve a term of 
                        imprisonment of 4 years or less;
                            ``(ii) multiple aggravated felonies arising 
                        out of a single scheme of criminal misconduct 
                        for which the alien was sentenced to serve, in 
                        the aggregate, a term of imprisonment of 4 
                        years or less; or
                            ``(iii) 2 aggravated felonies arising out 
                        of separate schemes of criminal misconduct for 
                        which the alien was sentenced to serve, in the 
                        aggregate, a term of imprisonment of 4 years or 
                        less, but for neither of which the alien was 
                        actually incarcerated;
                    ``(E) was not, in the commission of the aggravated 
                felony or felonies described in subparagraph (D)--
                            ``(i) an organizer, leader, manager, or 
                        supervisor of others; or
                            ``(ii) engaged in a continuing criminal 
                        enterprise (as defined in section 408(c) of the 
                        Controlled Substances Act (21 U.S.C. 848(c)));
                    ``(F) has never been incarcerated for any offense 
                except--
                            ``(i) the offense described in clause (i) 
                        of subparagraph (D), or another offense that 
                        was committed in the course of the same scheme 
                        of criminal misconduct; or
                            ``(ii) an offense that was committed in the 
                        course of the scheme or schemes described in 
                        clause (ii) or (iii) of such subparagraph; and
                    ``(G) has not been the subject of a timely 
                certification described in paragraph (7) with respect 
                to the aggravated felony or felonies described in 
                subparagraph (D), unless such certification has been 
                revoked pursuant to such paragraph.
            ``(3) Permanent residents convicted of an aggravated felony 
        classified as a crime of violence.--The Attorney General may 
        cancel removal in the case of an alien who is inadmissible to, 
        or deportable from, the United States, if the alien--
                    ``(A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    ``(B) satisfies the residence requirements of 
                paragraph (6);
                    ``(C) has never been convicted of--
                            ``(i) an act of murder, rape, or sexual 
                        abuse of a minor; or
                            ``(ii) an attempt or conspiracy to commit 
                        an offense described in clause (i);
                    ``(D) has never been convicted of any aggravated 
                felony that resulted in death or serious bodily injury 
                to any person other than the alien;
                    ``(E) has been convicted of--
                            ``(i) a single aggravated felony for which 
                        the alien was sentenced to serve a term of 
                        imprisonment of 2 years or less;
                            ``(ii) multiple aggravated felonies arising 
                        out of a single scheme of criminal misconduct 
                        for which the alien was sentenced to serve, in 
                        the aggregate, a term of imprisonment of 2 
                        years or less; or
                            ``(iii) 2 aggravated felonies arising out 
                        of separate schemes of criminal misconduct for 
                        which the alien was sentenced to serve, in the 
                        aggregate, a term of imprisonment of 2 years or 
                        less, but for neither of which the alien was 
                        actually incarcerated;
                    ``(F) was not, in the commission of the aggravated 
                felony or felonies described in subparagraph (E)--
                            ``(i) an organizer, leader, manager, or 
                        supervisor of others; or
                            ``(ii) engaged in a continuing criminal 
                        enterprise (as defined in section 408(c) of the 
                        Controlled Substances Act (21 U.S.C. 848(c)));
                    ``(G) has never been incarcerated for any offense 
                except--
                            ``(i) the offense described in clause (i) 
                        of subparagraph (E), or another offense that 
                        was committed in the course of the same scheme 
                        of criminal misconduct; or
                            ``(ii) an offense that was committed in the 
                        course of the scheme or schemes described in 
                        clause (ii) or (iii) of such subparagraph; and
                    ``(H) has not been the subject of a timely 
                certification described in paragraph (7) with respect 
                to the aggravated felony or felonies described in 
                subparagraph (E), unless such certification has been 
                revoked pursuant to such paragraph.
            ``(4) Permanent residents admitted before age 10.--The 
        Attorney General may cancel removal in the case of an alien who 
        is inadmissible to, or deportable from, the United States, if 
        the alien--
                    ``(A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    ``(B) resided in the United States continuously for 
                7 years after having been admitted in any status when 
                the alien was under 10 years of age;
                    ``(C) has never been convicted of--
                            ``(i) an act of murder, rape, or sexual 
                        abuse of a minor; or
                            ``(ii) an attempt or conspiracy to commit 
                        an offense described in clause (i); and
                    ``(D) has never been incarcerated for a third (or 
                succeeding) aggravated felony, except that multiple 
                felonies arising out of a single scheme of criminal 
                misconduct shall be considered a single felony for 
                purposes of this subparagraph.
            ``(5) Permanent residents admitted before age 16.--The 
        Attorney General may cancel removal in the case of an alien who 
        is inadmissible to, or deportable from, the United States, if 
        the alien--
                    ``(A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    ``(B) resided in the United States continuously for 
                7 years--
                            ``(i) before the alien committed any 
                        aggravated felony; and
                            ``(ii) after having been admitted in any 
                        status when the alien was under 16 years of 
                        age;
                    ``(C) has never been convicted of--
                            ``(i) an act of murder, rape, or sexual 
                        abuse of a minor; or
                            ``(ii) an attempt or conspiracy to commit 
                        an offense described in clause (i); and
                    ``(D) has never been incarcerated for a third (or 
                succeeding) aggravated felony, except that multiple 
                felonies arising out of a single scheme of criminal 
                misconduct shall be considered a single felony for 
                purposes of this subparagraph.
            ``(6) Residence requirements for certain aliens.--In the 
        case of an alien seeking relief under paragraph (2) or (3), the 
        residence requirements described in this paragraph are as 
        follows:
                    ``(A) If the alien has been convicted of any 
                aggravated felony committed after the date of the 
                enactment of the Family Reunification Act of 2002, the 
                alien is required to have resided in the United 
                States--
                            ``(i) continuously for 7 years after having 
                        been admitted in any status and prior to the 
                        commission of such aggravated felony; or
                            ``(ii) continuously for 10 years after 
                        having been admitted in any status, except 
                        that, if the alien is incarcerated with respect 
                        to such aggravated felony, the period beginning 
                        on the date on which such aggravated felony was 
                        committed and ending on the last day of such 
                        term of incarceration shall be excluded in 
                        determining continuous residence under this 
                        clause.
                    ``(B) If the alien has not been convicted of an 
                aggravated felony committed after the date of the 
                enactment of the Family Reunification Act of 2002, but 
                has otherwise been incarcerated for any aggravated 
                felony, the alien is required to have resided in the 
                United States--
                            ``(i) continuously for 7 years after having 
                        been admitted in any status and prior to the 
                        commencement of such term of incarceration; or
                            ``(ii) continuously for 10 years after 
                        having been admitted in any status, except that 
                        any term of incarceration for any aggravated 
                        felony shall be excluded in determining 
                        continuous residence under this clause.
                    ``(C) If the alien is not described in subparagraph 
                (A) or (B), the alien is required to have resided in 
                the United States continuously for 7 years after having 
                been admitted in any status.
            ``(7) Certifications.--
                    ``(A) In general.--In the case of an alien seeking 
                relief under paragraph (2) or (3), not later than 2 
                weeks after the alien files an application for such 
                relief, the Attorney General may notify each agency 
                that prosecuted an aggravated felony referred to in 
                paragraph (2)(D) or (3)(E), as the case may be.
                    ``(B) Contents.--The notification shall inform the 
                agency that it has an opportunity--
                            ``(i) to certify to the Attorney General, 
                        not later than 60 days after the date on which 
                        the notification is mailed, that the alien has 
                        not truthfully provided to the agency all 
                        information and evidence the alien has 
                        concerning such felony or felonies, and any 
                        other offense or offenses that were part of the 
                        same scheme of criminal misconduct as such 
                        felony or felonies; and
                            ``(ii) on those grounds, to object to 
                        cancellation of removal.
                    ``(C) Provision to alien.--The Attorney General 
                shall mail any certification timely made pursuant to 
                subparagraph (B) with respect to an alien to such 
                alien. The alien shall have an opportunity, during the 
                21-day period beginning on the date on which the 
                certification is mailed, to truthfully provide to the 
                agency all information and evidence which the agency 
                certifies has not been provided.
                    ``(D) Revocation of certification.--
                            ``(i) In general.--The agency may, during 
                        the 21-day period beginning after the end of 
                        the period described in subparagraph (C), 
                        revoke any certification made pursuant to 
                        subparagraph (B). Any revocation of a 
                        certification shall void such certification.
                            ``(ii) Untimely revocations.--A revocation 
                        under this subparagraph that is not timely made 
                        may be considered by the Attorney General in 
                        the Attorney General's discretion if it is made 
                        prior to the issuance of a final order of 
                        removal, but the absence of a timely revocation 
                        shall not be the basis for any continuance or 
                        delay of proceedings. Any determination to deny 
                        relief based in whole or in part on a 
                        revocation that is not made, or not timely 
                        made, shall not be subject to administrative or 
                        judicial review in any forum.
                    ``(E) Forms requirement.--The Attorney General 
                shall ensure that the consequences under this paragraph 
                of failing to provide information or evidence with 
                respect to aggravated felonies are clearly explained in 
                any form promulgated by the Attorney General that may 
                be used to apply for relief under paragraph (2) or (3).
                    ``(F) Construction.--This paragraph, and paragraphs 
                (2) and (3), shall not be construed to require the 
                Attorney General to notify any agency under 
                subparagraph (A). If the Attorney General fails to 
                send, or fails timely to send, the notification 
                described in such subparagraph, the alien shall be 
                deemed not to be the subject of a certification.
            ``(8) Clarification with respect to certain references.--
        Any reference in this subsection to a term of imprisonment or a 
        sentence with respect to an offense is deemed to include the 
        period of incarceration or confinement ordered by a court of 
        law, regardless of any suspension of the imposition or 
        execution of that imprisonment or sentence in whole or in part. 
        However, a period of probation is not a term of imprisonment or 
        a sentence for purposes of this subsection.
            ``(9) Limitation on delegation.--Cancellation of removal 
        under paragraph (2), (3), (4), or (5) may be granted only by 
        the Attorney General or Deputy Attorney General. No delegation 
        of such authority to any other official may be made.''.

SEC. 3. CHANGE IN CONDITIONS FOR TERMINATION OF PERIOD OF CONTINUOUS 
                    RESIDENCE OR CONTINUOUS PHYSICAL PRESENCE.

    Section 240A(d)(1) of the Immigration and Nationality Act (8 U.S.C. 
1229b(d)(1)) is amended to read as follows:
            ``(1) Termination of continuous period.--For purposes of 
        this section, any period of continuous residence or continuous 
        physical presence in the United States shall be deemed to end, 
        except in the case of an alien who applies for cancellation of 
        removal under subsection (b)(2), when the alien is served a 
        notice to appear under section 239(a).''.

SEC. 4. PERMITTING CERTAIN PERMANENT RESIDENT ALIENS TO RETURN WITHOUT 
                    SEEKING ADMISSION.

    Section 101(a)(13)(C) of the Immigration and Nationality Act (8 
U.S.C. 1101(a)(13)(C)) is amended--
            (1) by striking the comma at the end of each of clauses 
        (i), (ii), (iii), and (iv) and inserting a semicolon at the end 
        of each such clause;
            (2) by amending clause (v) to read as follows:
            ``(v) has committed outside the United States an offense 
        identified in section 212(a)(2), unless, since such offense, 
        the alien has been granted relief under section 212(h) or 
        240A(a), or under section 212(c) (before its repeal by section 
        304(b) of the Illegal Immigration Reform and Immigrant 
        Responsibility Act of 1996 (110 Stat. 3009-597));'';
            (3) by redesignating clause (vi) as clause (vii); and
            (4) by inserting after clause (v) the following:
            ``(vi) has committed in the United States an offense 
        identified in section 212(a)(2), and has been absent from the 
        United States for a continuous period in excess of 30 days 
        since committing such offense (or, if the absence after the 
        30th day was beyond the alien's control, for a continuous 
        period in excess of 60 days), unless, since such offense, the 
        alien has been granted relief under section 212(h) or 240A(a), 
        or under section 212(c) (before its repeal by section 304(b) of 
        the Illegal Immigration Reform and Immigrant Responsibility Act 
        of 1996 (110 Stat. 3009-597)); or''.

SEC. 5. RELEASE OF NONDANGEROUS ALIENS.

    (a) In General.--Section 236(c)(2) of the Immigration and 
Nationality Act (8 U.S.C. 1226(c)(2)) is amended to read as follows:
            ``(2) Release.--
                    ``(A) In general.--The Attorney General may release 
                an alien described in paragraph (1) only in accordance 
                with subparagraph (B) or (C). A decision relating to 
                release under this paragraph shall take place in 
                accordance with a procedure that considers the severity 
                of any offense committed by the alien.
                    ``(B) Protection for witnesses, potential 
                witnesses, and persons cooperating with criminal 
                investigations.--The Attorney General may release an 
                alien described in paragraph (1) if--
                            ``(i) the Attorney General decides pursuant 
                        to section 3521 of title 18, United States 
                        Code, that release of the alien from custody is 
                        necessary to provide protection to a witness, a 
                        potential witness, a person cooperating with an 
                        investigation into major criminal activity, or 
                        an immediate family member or close associate 
                        of a witness, potential witness, or person 
                        cooperating with such an investigation; and
                            ``(ii) the alien satisfies the Attorney 
                        General that the alien will not pose a danger 
                        to the national security of the United States 
                        or the safety of persons or property and is 
                        likely to appear for any scheduled proceeding.
                    ``(C) Permanent resident aliens eligible for 
                cancellation of removal.--The Attorney General may 
                release an alien described in paragraph (1) if the 
                alien demonstrates, by a preponderance of the evidence, 
                that the alien--
                            ``(i) has prima facie evidence sufficient 
                        to establish that the alien is eligible for 
                        cancellation of removal under section 240A(a); 
                        and
                            ``(ii) will not pose a danger to the 
                        national security of the United States or the 
                        safety of persons or property and is likely to 
                        appear for any scheduled proceeding.''.
    (b) Application to Aliens Detained on Effective Date.--In the case 
of an alien detained under section 241(a)(2) of the Immigration and 
Nationality Act (8 U.S.C. 1231(a)(2)) on the date of the enactment of 
this Act, if the alien has prima facie evidence sufficient to establish 
that the alien is eligible for cancellation of removal under section 
240A(a) of such Act (8 U.S.C. 1229b(a)), as amended by section 2 of 
this Act (and subject to the other amendments made by this Act), the 
alien may seek release from detention under section 236(c)(2)(C) of 
such Act (8 U.S.C. 1226(c)(2)(C)), as added by this section.

SEC. 6. CLARIFICATION OF EFFECT OF VACATION OF CONVICTION.

    Section 101(a)(48) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(48)) is amended by adding at the end the following:
    ``(C) Any conviction entered by a court that otherwise would be 
considered a conviction under this paragraph shall continue to be so 
considered notwithstanding a vacation of that conviction, unless the 
conviction is vacated--
            ``(i) on the merits; or
            ``(ii) on grounds relating to a violation of a statutory or 
        constitutional right in the underlying criminal proceeding.''.

SEC. 7. EFFECTIVE DATE; SPECIAL APPLICABILITY RULE.

    (a) In General.--The amendments made by this Act shall take effect 
on the date of the enactment of this Act and shall apply to aliens 
who--
            (1) are in removal proceedings under the Immigration and 
        Nationality Act (8 U.S.C. 1101 et seq.) on or after such date;
            (2) were in such proceedings before such date, were 
        ineligible for cancellation of removal under section 240A(a) of 
        such Act (8 U.S.C. 1229b(a)) before such date, but would have 
        been eligible for cancellation of removal under such section if 
        the amendments made by this Act had been in effect during the 
        entire pendency of such proceedings; or
            (3) were in exclusion or deportation proceedings under such 
        Act before such date, and were ineligible for relief under 
        section 212(c) of such Act (as in effect on March 31, 1997, 
        before its repeal by section 304(b) of the Illegal Immigration 
        Reform and Immigrant Responsibility Act of 1996 (110 Stat. 
        3009-597)) by reason of the amendments made by section 440(d) 
        of the Antiterrorism and Effective Death Penalty Act of 1996 
        (Public Law 104-132; 110 Stat. 1277).
    (b) Special Applicability Rule.--
            (1) In general.--Notwithstanding any other provision of 
        law, aliens described in subsection (a)(3) shall be considered 
        to be, or to have been, in removal proceedings under the 
        Immigration and Nationality Act (8 U.S.C. 1101 et seq.) to the 
        extent necessary to permit them to apply, and be considered 
        eligible, for cancellation of removal under section 240A(a) of 
        such Act (8 U.S.C. 1229b(a)), as amended by this Act.
            (2) Relief.--If the Attorney General determines that an 
        alien described in subsection (a)(3) should be provided relief 
        pursuant to this Act, the Attorney General shall take such 
        steps as may be necessary to terminate any proceedings to 
        exclude or deport the alien that may be pending, and shall 
        grant or restore to the alien the status of an alien lawfully 
        admitted to the United States for permanent residence.

SEC. 8. MOTIONS TO REOPEN.

    (a) In General.--Not later than 1 year after the effective date of 
the final regulations issued under section 9(b) of this Act, and in 
accordance with such regulations, an alien described in subsection (b) 
may file a motion to reopen removal, deportation, or exclusion 
proceedings in order to apply for cancellation of removal under section 
240A(a) of the Immigration and Nationality Act (8 U.S.C. 1229b(a)) 
pursuant to the amendments made by this Act.
    (b) Aliens Described.--An alien is described in this subsection if 
the alien--
            (1) is described in subsection (a) of section 7; and
            (2) is otherwise unable to apply, or reapply, for 
        cancellation of removal under section 240A(a) of the 
        Immigration and Nationality Act (8 U.S.C. 1229b(a)) by reason 
        of the procedural posture of the exclusion, deportation, or 
        removal proceedings that are, or were, pending against the 
        alien (including the fact that such proceedings are finally 
        concluded).
    (c) Evidence.--A motion filed under subsection (a) shall describe 
or set forth prima facie evidence sufficient to establish that the 
alien is eligible for cancellation of removal under section 240A(a) of 
the Immigration and Nationality Act (8 U.S.C. 1229b(a)), as amended by 
this Act.
    (d) No Reentry or Readmission To File or Prosecute Motion.--No 
alien may be admitted or otherwise authorized to enter the United 
States solely to file or prosecute a motion to reopen under this 
section or otherwise to apply for relief under this Act or the 
amendments made by this Act, except as the Attorney General may provide 
pursuant to the sole and unreviewable discretion of the Attorney 
General. Hearings held pursuant to this Act and the amendments made by 
this Act may be held in the United States or abroad, with the alien 
appearing in person or by video phone or similar device.
    (e) Discretion.--The grant or denial of any motion to reopen filed 
under this section shall be in the sole and unreviewable discretion of 
the Attorney General.
    (f) No Judicial Review.--No court shall have jurisdiction to review 
any decision of the Attorney General denying a motion to reopen under 
this section.

SEC. 9. RULES.

    (a) Issuance of Advance Notice of Proposed Rulemaking.--The 
Attorney General shall issue an advance notice of proposed rulemaking 
pertaining to this Act, and the amendments made by this Act, not later 
than 60 days after the date of the enactment of this Act.
    (b) Issuance of Final Regulations.--The Attorney General shall 
issue the final regulations to carry out this Act not later than 90 
days after the date of the enactment of this Act, specifying an 
effective date that is not more than 15 days after the date of 
publication of such final regulations.

SEC. 10. SUNSET.

    This Act, and the amendments made by this Act, shall cease to have 
effect on December 31, 2005, or 3 years after the date on which final 
regulations to carry out this Act are issued, whichever occurs later.

SEC. 11. ANNUAL REPORT.

    The Attorney General annually shall submit to the Committee on the 
Judiciary of the United States House of Representatives and the 
Committee on the Judiciary of the Senate a report with respect to this 
Act and the amendments made by this Act. The report shall contain 
information on--
            (1) the number of aliens who applied for cancellation of 
        removal, release from detention, or any other immigration 
        benefit, based on this Act or the amendments made by this Act;
            (2) the crimes committed by the aliens described in 
        paragraph (1);
            (3) the number of applications described in paragraph (1) 
        that were granted; and
            (4) any other subject the Attorney General considers 
        relevant.

                          Purpose and Summary

    H.R. 1452, the ``Family Reunification Act of 2002,'' will 
allow certain permanent resident aliens who have committed 
crimes to seek discretionary relief from removal from the 
Attorney General.

                Background and Need for the Legislation

    Prior to enactment of the Antiterrorism and Effective Death 
Penalty Act of 1996 (hereinafter cited as ``AEDPA'') \1\ and 
the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 (hereinafter cited as ``IIRIRA'') \2\, permanent 
resident aliens who were domiciled in the United States for 
seven continuous years and were subject to deportation could 
seek discretionary ``212(c)'' relief from deportation unless 
they had been convicted of one or more aggravated felonies and 
had served for such felonies terms of imprisonment of at least 
5 years.\3\ While the granting of relief was a discretionary 
action by an immigration judge or the Board of Immigration 
Appeals, aliens could appeal denial of relief to Federal court. 
During the 1990's, the percentage of applications granted began 
to surpass 50 percent.\4\ This Committee believed the situation 
was intolerable:
---------------------------------------------------------------------------
    \1\ Pub. L. No. 104-132.
    \2\ Division C of Title III of Pub. L. No. 104-208.
    \3\ Section 212(c) of the Immigration and Nationality Act (amended 
by section 440(d) of AEDPA and then repealed by section 304(b) of 
IIRIRA).
    \4\ In fiscal year 1995, 53.5 percent of applications for 212(c) 
relief were granted by immigration courts (data provided by the U.S. 
Department of Justice, Executive Office for Immigration Review).

        The increasing public attention paid to our Nation's 
        immigration policies has brought to light the high 
        number of aliens, both legal and illegal, who commit 
        crimes while enjoying the benefits of this country. . . 
        . In the past, many aliens who committed serious crimes 
        were released into American society after they were 
        released from incarceration, where they then continue 
        to pose a threat to those around them. The Government's 
        attempts to deport those aliens committing the most 
---------------------------------------------------------------------------
        serious crimes has proved to be ineffective.

        . . .

        In the view of the Committee, those who choose not to 
        abide by this nation's laws, and particularly those 
        whose criminal activity physically harms others, have 
        no legitimate claim to remain in the United States.\5\
---------------------------------------------------------------------------
    \5\ H.R. Rep. No. 104-22, at 6, 8 (1995). The Committee later 
learned through information gained by a subpoena duces tecum issued to 
the Justice Department that 37 percent of criminal aliens released by 
the INS are later convicted of another crime. H.R. Rep. No. 106-1048, 
at 256-57 (2001). This report includes legal and illegal aliens, 
permanent residents, students, and temporary visitors. There has been 
no report examining exclusively the recidivism rate of legal permanent 
residents, the people who would benefit from this legislation.

    In AEDPA, Congress took a number of steps to address these 
concerns, including rescinding judicial review of final orders 
of deportation based on the commission of certain crimes 
(including aggravated felonies),\6\ requiring the detention of 
any alien convicted of an aggravated felony upon release from 
incarceration,\7\ making aliens who have been convicted of 
certain crimes (including any aggravated felonies) ineligible 
for 212(c) relief,\8\ and expanding the number of crimes 
considered aggravated felonies under the Immigration and 
Nationality Act.\9\
---------------------------------------------------------------------------
    \6\ Section 440(a) of AEDPA.
    \7\ Section 440(c) of AEDPA.
    \8\ Section 440(d) of AEDPA.
    \9\ Section 440(e) of AEDPA.
---------------------------------------------------------------------------
    Congress refined this scheme in IIRIRA. ``212(c)'' relief 
was repealed.\10\ In its place, deportable permanent residents 
could seek ``cancellation of removal''--discretionary relief 
from removal by an immigration judge--if the alien: (1) has 
been an alien lawfully admitted for permanent residence for not 
less than 5 years; (2) has resided in the United States 
continuously for 7 years after having been admitted in any 
status; and (3) has not been convicted of any aggravated 
felony.\11\
---------------------------------------------------------------------------
    \10\ Section 304(b) of IIRIRA.
    \11\ Section 304(a) of IIRIRA. See section 240A(a) of the INA.
---------------------------------------------------------------------------
    IIRIRA defined term of imprisonment as including a period 
of incarceration or confinement regardless of any suspension of 
the imposition or execution of the imprisonment.\12\ Judges 
often suspend sentences for reasons having nothing to do with 
the gravity of the offense, such as to relieve prison 
overcrowding. Congress did not believe that such a suspension 
should have a bearing on the immigration consequences of a 
criminal conviction. IIRIRA also defined continuous residence 
to end when the alien was served a notice to appear at a 
removal proceeding or when the alien has committed certain 
crimes making them inadmissible or removable (including 
aggravated felonies).\13\ The basis for relief is the equities 
that build up for an alien who lives in the United States 
peaceably and in compliance with the law over many years. 
Congress did not believe that equities accrue after an alien 
has committed a crime or been told to appear at a removal 
proceeding. In addition, Congress wanted to end the abusive 
tactic whereby aliens and their attorneys attempt to stretch 
out removal proceedings in order to accrue the time of 
residence necessary to qualify for relief from deportation. The 
definition of aggravated felony was again expanded.\14\
---------------------------------------------------------------------------
    \12\ Section 322(a) of IIRIRA. See section 101(a)(48)(B) of the 
INA.
    \13\ Section 304(a) of IIRIRA. See section 240A(d) of the INA.
    \14\ Section 321 of IIRIRA. See section 101(a)(43) of the INA.
---------------------------------------------------------------------------
    Congress's actions in the 104th Congress have succeeded in 
almost doubling the number of criminal aliens deported annually 
from 38,015 in fiscal 1996 to 71,028 in fiscal 2000.\15\ 
However, a disturbing number of cases have arisen in which the 
deportation of legal permanent resident aliens' have seemed 
exceedingly harsh responses. The first category of such 
hardship cases involves permanent residents who were brought 
legally to the U.S. when still young children and now face 
deportation to countries that they no longer even remember, let 
alone to which they have any ties or speak the language. The 
second category involves permanent residents who committed 
crimes well before 1996 that were reclassified as aggravated 
felonies in that year. Many of these aliens have fully 
reformed, raised families and become productive members of 
their communities in the ensuing years. The third category 
involves aliens who have committed relatively minor crimes. 
Since an aggravated felony is now defined to include any crime 
of theft or violence for which an alien is sentenced to 1 year 
or more of prison \16\ , or any drug trafficking offense 
(regardless of whether any jail sentence is imposed) \17\ , 
crimes such as shoplifting, drunk driving and very low level 
drug trafficking can carry with them mandatory deportation for 
permanent residents.
---------------------------------------------------------------------------
    \15\ INS data.
    \16\ See section 101(a)(43)(F) & (G) of the INA.
    \17\ See section 101(a)(43)(B) of the INA.
---------------------------------------------------------------------------
    In 1999, a number of members of this Committee, including 
Republicans F. James Sensenbrenner, Jr., Henry Hyde, Lamar 
Smith, Bill McCollum, and Charles Canady and Democrats Barney 
Frank, Sheila Jackson Lee, Howard Berman and Martin Meehan, 
were among 28 members who sent a letter to then Attorney 
General Janet Reno stating that:

        [C]ases of apparent extreme hardship have caused 
        concern. Some cases may involve removal proceedings 
        against legal permanent residents who came to the 
        United States when they were very young, and many years 
        ago committed a single crime at the lower end of the 
        ``aggravated felony'' spectrum, but have been law-
        abiding ever since, obtained and held jobs and remained 
        self-sufficient, and started families in the United 
        States. Although they did not become citizens, 
        immediate family members are citizens.

        There has been widespread agreement that some 
        deportations were unfair and resulted in unjustifiable 
        hardship.\18\
---------------------------------------------------------------------------
    \18\ Letter to Janet Reno, U.S. Attorney General, and Doris 
Meissner, Commissioner, Immigration Naturalization Service (Nov. 4, 
1999).

    That letter requested that the Attorney General issue 
guidelines on prosecutorial discretion so that INS prosecutors 
would be encouraged to utilize their inherent power to not 
pursue removal in appropriate cases. The guidelines have been 
issued,\19\ but reports of egregious deportation actions 
continue. The law currently allows only very limited relief for 
permanent residents who have committed crimes properly 
classified as aggravated felonies.
---------------------------------------------------------------------------
    \19\ See memorandum from Doris Meissner, Commissioner, INS, to 
Regional Directors, District Directors, Chief Patrol Agents, and 
Regional and District Counsel (Nov. 17, 2000).
---------------------------------------------------------------------------
    Members of Congress also took issue with the retroactive 
application of the amendments to section 212(c) in AEDPA and 
IIRIRA. The Supreme Court recognized in INS v. St. Cyr, 533 
U.S. 289 (2001) that ``within constitutional limits, Congress 
has the power to enact laws with retrospective effect.'' The 
Court reaffirmed, however, the strong presumption in American 
jurisprudence against retroactive legislation in this context:

        The presumption against retroactive legislation is 
        deeply rooted in our jurisprudence, and embodies a 
        legal doctrine centuries older than our Republic. 
        Elementary considerations of fairness dictate that 
        individuals should have an opportunity to know what the 
        law is and to conform their conduct accordingly; 
        settled expectations should not be lightly disrupted. 
        For that reason, the principle that the legal effect of 
        conduct should ordinarily be assessed under the law 
        that existed when the conduct took place has timeless 
        and universal human appeal.

St. Cyr, 533 U.S. at 316 (quoting Landgraf v. USI Film Prods., 
511 U.S. 244, 266 (1994) (internal citations omitted). Applying 
this presumption, the Court in St. Cyr found ``nothing in 
IIRIRA unmistakably indicating that Congress considered the 
question whether to apply its repeal of section 212(c) 
retroactively to . . . aliens . . . whose convictions were 
obtained through plea agreements and who, notwithstanding those 
convictions, would have been eligible for section 212(c) relief 
at the time of their plea under the law then in effect,'' 
holding that section 212(c) relief remains available for such 
aliens.
    H.R. 1452, as approved by the Judiciary Committee, strikes 
an appropriate and fair balance on the issue of relief from 
deportation for legal permanent resident aliens. It will 
provide the Justice Department the ability to spare aliens from 
deportation in the most sympathetic cases. The compromise 
reaches a middle ground between pre-1996 law and current law. 
It retains the beneficial reforms from 1996 while letting a 
select group of legal permanent residents request discretionary 
relief from deportation. It does not, however, narrow in any 
way the holding of the Supreme Court in St. Cyr.
    Because of concerns about the willingness of some 
immigration judges to grant relief from deportation 
profligately if given the ability, the bill provides that only 
the Attorney General or Deputy Attorney General may grant the 
relief provided. This will prevent any such abuses of 
discretion from occurring and ensure that only truly deserving 
applicants who do not pose a danger to the public and who will 
not engage in future criminal behavior will receive relief. The 
oversight of the Congress will give the Attorney General and 
the Deputy Attorney General ample incentive to ensure that the 
relief is granted only in exceptional circumstances and 
meritorious and compelling cases.
    The bill sets forth four avenues of relief from removal for 
permanent residents who have been convicted of a crime, with 
eligibility for relief based in part on provisions limiting the 
mandatory minimum penalties in sentencing guidelines (18 U.S.C. 
Sec. 3553). None of those four forms of relief are available to 
aliens who have engaged in or are likely to engage in terrorist 
activity (pursuant to section 240A(c)(4) of the INA) or have 
been convicted of murder, rape, or sexual abuse of a minor:
    First, a non-violent aggravated felon can seek relief if 
he: (1) has been a permanent resident for at least 5 years; (2) 
has resided in the U.S. continuously for at least 7 to 10 
years; (3) was convicted in connection with a single scheme of 
misconduct for which the alien received a sentence of 4 years 
or less, or two schemes of misconduct for which the alien 
received a sentence of 4 years or less, but was never actually 
imprisoned; and (4) was not an organizer or leader of the 
aggravated felony or felonies. If the alien has served jail 
time in connection with any other offense, he is ineligible for 
this relief. In addition, the criminal prosecutor may block 
such relief if the alien failed to provide the prosecutor with 
all information he possesses about the offense.
    Second, an alien convicted of a violent aggravated felony 
may seek relief under the same standards, except that the 
requirement of not having been sentenced to more than 4 years 
is reduced to more than 2 years, and the crime could not have 
resulted in serious bodily injury or death. It should be 
pointed out that in 1995 and 1996, this Committee and then the 
House passed the Immigration in the National Interest Act 
(which eventually led to IIRIRA) providing that a permanent 
resident could not seek relief from deportation if he had been 
convicted of an aggravated felony for which he was sentenced to 
at least 5 years in prison.\20\ The relief provided by H.R. 
1452 is more restrictive than what the Committee prepared to 
accept in the 104th Congress.
---------------------------------------------------------------------------
    \20\ See H.R. Rep. No. 104-469, pt. 1, at 23 (1996). (This document 
is the report of the House Judiciary Committee on H.R. 2202, 104th 
Congress).
---------------------------------------------------------------------------
    The third form of relief in H.R. 1452 provides that an 
alien who legally arrived in the U.S. before age 10 can seek 
relief if the alien has: (1) been a permanent resident for at 
least 5 years; (2) has resided in the U.S. continuously for at 
least 7 after having arrived in the U.S.; and (3) has not been 
imprisoned for aggravated felonies arising out of more than two 
patterns of criminal misconduct.
    Fourth, an alien who legally entered the U.S. before age 16 
can apply for relief in the same manner as those aliens who 
arrived before the age of 10, except that such aliens are 
barred from relief if they commit any aggravated felony within 
their first 7 years in the U.S.
    The bill provides that an alien who was made ineligible for 
relief by the 1996 immigration legislation, but who would be 
eligible for one of these four forms of relief, can move to 
reopen his case within 1 year of the Attorney General's 
issuance of regulations. While aliens who have already been 
deported may move to reopen to apply for relief, those aliens 
must apply from abroad and can only reenter the United States 
if they are actually granted relief.
    The bill also provides that an immigration judge may 
release a permanent resident from detention if the alien can 
demonstrate that he or she is prima facie eligible for one of 
the four forms of relief, would not pose a danger to persons, 
property, or national security, and would likely appear at all 
future proceedings.
    The Attorney General must prepare an annual report to 
Congress on the utilization of the provisions of the bill. The 
bill will then cease to have effect as of the later of 3 years 
after the date on which a final rule implementing the bill is 
promulgated or December 31, 2005. At such time, Congress can 
review the effects of the bill and decide whether it merits 
extension.

                                Hearings

    No hearings were held on H.R. 1452.

                        Committee Consideration

    On July 23, 2002, the Committee met in open session and 
ordered favorably reported the bill H.R. 1452 with amendment by 
a recorded vote of 18-15, a quorum being present.

                         Vote of the Committee

    There was one recorded vote on final passage. The bill was 
adopted 18-15, a quorum being present.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................              X
Mr. Gekas.......................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Barr........................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................              X
Mr. Graham......................................................                              X
Mr. Bachus......................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. Conyers.....................................................              X
Mr. Frank.......................................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             18              15
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    H.R. 1452 does not authorize funding. Therefore, clause 
3(c) of rule XIII of the Rules of the House of Representatives 
is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1452, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 11, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1452, the Family 
Reunification Act of 2002.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 1452--Family Reunification Act of 2002.
    CBO estimates that enacting H.R. 1452 would result in no 
significant net cost to the Federal Government. The bill would 
affect direct spending, so pay-as-you-go procedures would 
apply, but we estimate that the net effects would be 
insignificant. H.R. 1452 contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act and would impose no significant costs on State, 
local, or tribal governments.
    H.R. 1452 would permit the Immigration and Naturalization 
Service (INS) to cancel the removal (deportation) of certain 
permanent resident aliens convicted of specified aggravated 
felonies. Under current law, such felons generally are 
deported. The bill's provisions would terminate 3 years after 
the issuance of final regulations to implement the legislation, 
or on December 31, 2005, whichever is later. H.R. 1452 also 
would apply retroactively to persons removed before enactment 
if such individuals apply to reopen removal proceedings within 
1 year of the bill's implementation.
    Enacting H.R. 1452 would increase the number of 
applications for cancellation of removal over the next 3 years. 
Based on information from the INS about the number of permanent 
aliens convicted of aggravated felonies who were deported in 
recent years, the number of applications for removal could 
increase by several thousand each year. The number of 
cancellations, however, is limited to 4,000 annually, and 
roughly 3,000 cancellations annually have been granted in 
recent years. The INS would collect a fee of $155 to adjudicate 
applications for cancellation of removal, so the agency could 
collect an additional $500,000 or so annually in offsetting 
receipts (a credit against direct spending) over the next 3 
years, assuming about 3,000 more people apply for cancellations 
under the bill each year. The agency is authorized to spend 
such fees without further appropriation, so the net impact on 
INS would be negligible.
    The bill would increase costs for Federal public benefits, 
assuming the annual limit on cancellations of removal will not 
be met under current law and that additional individuals would 
be granted cancellation of removal under the legislation. Based 
on the number of cancellations of removal granted over the last 
several years, CBO expects that the cost of additional Federal 
public benefits would not be significant.
    The CBO staff contacts for this estimate are Mark 
Grabowicz, who can be reached at 226-2860, and Valerie Baxter 
Womer, who can be reached at 226-2820. This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article 1, section 8, clause 4 of the 
Constitution.

               Section-by-Section Analysis and Discussion

Section 1. Short Title
    The short title of H.R. 1452 is the ``Family Reunification 
Act of 2002.''
Section 2. Cancellation of Removal
    As currently written, aliens who have been convicted of 
aggravated felonies as defined in section 101(a)(43) of the 
Immigration and Nationality Act (INA) are ineligible for 
cancellation of removal under section 240A(a) of the INA. 
Section 2 redesignates current section 240A(a) of the INA, 
which allows lawful permanent resident aliens who have not been 
convicted of an aggravated felony to apply for cancellation of 
removal, as section 240A(a)(1). Section 2 creates four new 
avenues of relief for certain lawful permanent resident aliens 
who have been convicted of aggravated felonies, with 
eligibility for relief based in part on provisions limiting the 
mandatory minimum penalties in sentencing guidelines (18 U.S.C. 
Sec. 3553). None of those four forms of relief are available to 
aliens who have been convicted of murder, rape, or sexual abuse 
of a minor.
    These four new forms of cancellation of removal can only be 
granted by the Attorney General or Deputy Attorney General, 
without delegation to any other official. It is anticipated 
that the Attorney General and/or Deputy Attorney General will 
appoint a staff to review applications for cancellation of 
removal under these provisions, and draft proposed decisions 
under the direction of either or both of those officials. The 
Attorney General or Deputy Attorney General will then either 
approve the decision, or send the draft back for necessary 
changes. The decision will be purely in the discretion of the 
Attorney General or Deputy Attorney General, and is not 
appealable.
    Proposed section 240A(a)(2) of the INA would allow an alien 
who has been convicted of an aggravated felony that is not a 
crime of violence as defined in 18 U.S.C. Sec. 16 to apply for 
cancellation of removal. In order to qualify for cancellation, 
the alien must have been a lawful permanent resident for at 
least 5 years and satisfy the residence requirements in 
proposed section 240A(a)(6) of the INA. The alien would be 
eligible for cancellation under this provision if the alien: 
(1) was convicted of a single non-violent aggravated felony (or 
multiple aggravated felonies arising out of a single scheme) 
for which the alien received a sentence of 4 years or less, or 
was convicted of two non-violent aggravated felonies for which 
the alien received a sentence of 4 years or less, but was never 
actually imprisoned; (2) was not an organizer or leader of 
those aggravated felony or felonies; (3) has, in the 
circumstances set forth in proposed section 240A(a)(7) of the 
INA, been certified to have provided all information regarding 
the aggravated felony or felonies to the agency that criminally 
prosecuted the alien; and (4) has never been imprisoned for any 
other offense.
    Proposed section 240A(a)(3) of the INA would allow an alien 
who has been convicted of an aggravated felony that is a crime 
of violence as defined in 18 U.S.C. Sec. 16 to apply for 
cancellation of removal. In order to qualify for cancellation 
under this provision, the alien must have been a lawful 
permanent resident for at least 5 years, and satisfy the 
residence requirements in proposed section 240A(a)(6) of the 
INA. The alien may seek cancellation under this provision if 
the alien: (1) was convicted of a single violent aggravated 
felony (or multiple aggravated felonies arising out of a single 
scheme) for which the alien received a sentence of 2 years or 
less, or was convicted of two violent aggravated felonies for 
which the alien received a sentence of 2 years or less, but was 
never actually imprisoned; (2) was not an organizer or leader 
of those aggravated felony or felonies; (3) has in the 
circumstances set forth in proposed section 240A(a)(7) of the 
INA, been certified to have provided all information regarding 
the aggravated felony or felonies to the agency that criminally 
prosecuted the alien; (4) has not been convicted of an 
aggravated felony that resulted in death or serious bodily 
injury to another person; and (5) has never been imprisoned for 
any other offense.
    The language in sections 240A(a)(2)(E) and 240A(a)(3)(F) 
tracks 18 U.S.C. Sec. 3553(f)(4), and it is expected that 
precedent in this body of law applicable to sentencing 
guidelines would also be used to determine whether an alien 
fits the definitions under this bill. Similarly, section 
240A(a)(3)(D) tracks 18 U.S.C. Sec. 3553(f)(3), with ``serious 
bodily injury'' also being defined in 18 U.S.C. 
Sec. 1365(g)(3), and case law interpreting that section would 
be instructive also in determining what constitutes ``serious 
bodily injury.'' The certifications described in 240A(a)(7) 
also track the limitation on mandatory minimum penalties in 18 
U.S.C. Sec. 3553(f)(5), and precedent from this law would also 
be instructive. For example, 18 U.S.C. Sec. 3553(f)(5) 
provides: ``[T]he fact that the defendant has no relevant or 
useful other information to provide or that the Government is 
already aware of the information shall not preclude a 
determination by the court that the defendant has complied with 
this requirement.'' It is expected that this same standard 
would apply under the bill and that an agency would not certify 
to the Attorney General an alien's non-compliance under 
240A(a)(7)(B)(i) in circumstances where an alien ``has no 
relevant or useful other information to provide'' or on the 
grounds that the agency ``is already aware of the information'' 
the alien provided.
    Proposed sections 240A(a)(4) and (5) of the INA would allow 
certain permanent resident aliens who were originally admitted 
to the United States as minors to seek cancellation of removal.
    Under section 240A(a)(4) of the INA, an alien who was 
admitted to the United States when under 10 years of age, who 
resided continuously for 7 years after that admission, and who 
has been a lawful permanent resident for 5 years would be able 
to apply for cancellation of removal, provided that the alien 
has not been incarcerated for more than two aggravated 
felonies. For purposes of this subparagraph, multiple felonies 
arising out of a single scheme of criminal misconduct are 
considered a single felony.
    Similarly, proposed section 240A(a)(5) of the INA would 
allow an alien who was originally admitted to the United States 
before the age of 16 to apply for cancellation of removal. In 
order to qualify for cancellation under this provision, the 
alien must be a lawful permanent resident for at least 5 years, 
have resided in the United States continuously for 7 years 
after having been admitted while under the age of 16 and before 
committing an aggravated felony, and not have been incarcerated 
for a third aggravated felony. Again, for purposes of assessing 
eligibility for cancellation under this provision, multiple 
felonies arising out of a single scheme of criminal misconduct 
are considered to be a single felony.
    Proposed section 240A(a)(6) of the INA contains additional 
residence requirements that an alien must meet to qualify for 
cancellation of removal under proposed sections 240A(a)(2) and 
(3). If the alien seeking cancellation under those provisions 
commits an aggravated felony after the date of enactment of the 
Family Reunification Act, the alien must have resided in the 
United States continuously for 7 years after a lawful admission 
and prior to the commission of the aggravated felony, or if the 
alien is incarcerated for the aggravated felony, for 10 years 
after a lawful admission excluding the time between the 
commencement of the commission of the offense and the date that 
the alien is released from incarceration for the offense, to be 
eligible for cancellation. If the alien seeking cancellation 
under those provisions was incarcerated for an aggravated 
felony before the enactment of the Family Reunification Act, 
but has not been convicted of an aggravated felony committed 
after the enactment date, the alien must show that he or she 
has resided in the United States continuously after a lawful 
admission for 7 years before incarceration, or continuously 
after a lawful admission for 10 years, excluding the period of 
incarceration for the aggravated felony, to be eligible for 
cancellation. If the alien seeking cancellation of removal 
under proposed sections 240A(a)(2) and (3) of the INA has not 
been incarcerated for any aggravated felony, the alien must 
show that he or she has resided in the United States 
continuously for 7 years after a lawful admission.
    Proposed section 240A(a)(7) of the INA contains a mechanism 
by which the prosecutor of an aggravated felony committed by an 
alien seeking relief under proposed sections 240(a)(2) and (3) 
of the INA may block the alien from seeking relief, where the 
alien has failed to truthfully provide the prosecutor all 
information and evidence that the alien has about the 
aggravated felony and any other offenses that were part of the 
same scheme of criminal misconduct. Under that provision, the 
Attorney General may notify the prosecutor within 14 days after 
the alien applies for cancellation that the prosecutor has the 
opportunity to object, within 60 days, to cancellation on the 
ground that the alien has failed to provide the prosecutor with 
such information. The Attorney General is not required to send 
that notice, and if the Attorney General fails to send the 
notice in a timely manner, cancellation of removal may not be 
pretermitted on the ground that the alien has failed to provide 
such information. If the prosecutor certifies within 60 days 
that the alien has failed to provide such information, the 
alien has 21 days to provide such information to the 
prosecutor. Within 21 days of receiving that information from 
the alien, the prosecutor may revoke the certification blocking 
the alien from receiving cancellation. The Attorney General may 
consider a revocation that is received after that final 21-day 
period up to the issuance of a final order of removal, but the 
alien may not seek a continuance for receipt of the revocation. 
A decision by the Attorney General to deny an application for 
cancellation of removal because a prosecutor's certification 
was not revoked, or not revoked in a timely manner, cannot be 
reviewed by any court, however. The consequences of an 
applicant's failure to provide information to a prosecutor 
truthfully must be explained on the application form for 
cancellation of removal under proposed sections 240A(a)(2) and 
(3).
    Proposed section 240A(a)(8) clarifies terms used in 
proposed section 240A(a). In accordance with that provision, 
references to a term of imprisonment or a sentence in section 
240A(a) of the INA include a period of incarceration or 
confinement ordered by a court, regardless of any suspension in 
the imposition or execution of that imprisonment or sentence in 
whole or in part, but does not include a separate period of 
probation. Thus, an alien who has received a sentence of 2 
years imprisonment, execution of which is suspended, and 2 
years probation for an aggravated felony is deemed to have 
received a 2-year sentence for that offense, not a 4-year 
sentence.
Section 3. Change in Conditions for Terminating a Period of Continuous 
        Residence or Continuous Physical Presence
    Section 3 amends section 240A(d)(1) of the INA to limit the 
date at which a period of continuous residence or physical 
presence is deemed to end for purposes of the cancellation of 
removal provisions. Currently, a period of continuous residence 
or physical presence is deemed to end when the alien receives a 
notice to appear for removal proceedings or when the alien 
commits an offense that renders the alien removable under 
sections 212(a)(2) or 237(a)(2) or (4) of the INA. Under this 
amendment, continuous residence or physical presence will end 
only when the alien is served the notice to appear.
Section 4. Amending the Conditions of Admission for Lawful Permanent 
        Residents
    Under current law, a lawful permanent resident who commits 
a criminal offense identified in section 212(a)(2) of the INA 
and who subsequently attempts to reenter the United States is 
deemed to be an alien seeking admission to the United States, 
rendering the alien subject to removal as an arriving alien, 
unless the alien received a waiver under section 212(h) of the 
INA or cancellation of removal prior to seeking reentry. 
Section 4 amends section 101(a)(13)(C) of the INA, which 
defines the instances in which a returning lawful permanent 
resident alien is deemed to be seeking admission. As amended, a 
permanent resident alien who has committed a criminal offense 
outside of the United States and who subsequently seeks to 
reenter the United States would be deemed to be seeking 
admission, unless the alien has received a waiver or 
cancellation of removal prior to seeking reentry. An alien who 
commits a criminal offense within the United States and who 
subsequently departs and attempts to reenter the United States 
would not be deemed to be an arriving alien unless absent from 
the United States for more than 30 days, or for more than 60 
days if the alien was unable to return within 30 days for 
reasons beyond the alien's control. If an alien who has 
committed a criminal offense within the United States receives 
a waiver for that offense or cancellation of removal before 
attempting to reenter the United States, the alien would not be 
deemed to be an arriving alien.
Section 5. Release of Nondangerous Aliens
    Currently, most aliens who are removable on criminal 
grounds may not be released from INS custody pending a decision 
in their cases. Section 5(a) would allow the Attorney General 
to release a criminal alien who proves that he is prima facie 
eligible for cancellation of removal under section 240A(a) of 
the INA, and would not pose a danger to the national security 
or the safety of persons or property or be flight risk if 
released. Section 5(b) would allow the Attorney General to 
release an alien detained pending removal on the date of 
enactment who makes such a showing.
Section 6. Clarification of the Effect of the Vacation of a Conviction
    Section 6 clarifies the effect of a vacation of a criminal 
conviction for immigration purposes. Aliens have been 
successfully seeking relief from the criminal courts that 
entered convictions against them in order to avoid the 
immigration consequences of their crimes. Section 6 would amend 
section 101(a)(48) of the INA to end this abusive practice by 
clarifying that a criminal conviction remains a conviction for 
immigration purposes even if vacated, unless the conviction is 
vacated on the merits or on grounds relating to the violation 
of a statutory or constitutional right in the underlying 
proceedings. The vacation of a conviction for immigration 
purposes alone would not allow an alien to avoid the criminal 
consequences of that conviction. This provision will require 
the Attorney General to limit the decision of the Board of 
Immigration Appeals in Matter of Rodriguez-Ruiz, 22 I&N Dec. 
1378 (BIA 2000) to the extent that the decision may prevent an 
Immigration Judge or the Board of Immigration Appeals from 
reviewing the vacation of a conviction to assess the reasons 
for the vacation.
Section 7. Effective Date and Special Applicability Rule
    Section 7 specifies that the amendments to the INA in the 
Family Reunification Act of 2002 take effect on enactment and 
apply to aliens in removal proceedings on the date of 
enactment, as well as to aliens in proceedings before the 
effective date who would have been eligible for cancellation of 
removal under section 240A(a) of the INA as amended, but who 
were ineligible for cancellation of removal under section 
240A(a) before amendment. In addition, the amendments would 
also apply to cases involving aliens who were in exclusion or 
deportation proceedings before the date of enactment, but who 
were ineligible for relief under former section 212(c) of the 
INA as a result of the amendments in section 440(d) of the 
Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 
104-132, 110 Stat. 1277). For the limited purpose of 
eligibility for relief under section 240A(a) of the INA, as 
amended by this Act, aliens who were in placed into deportation 
or exclusion proceedings are considered to be in removal 
proceedings.
Section 8. Motions to Reopen
    An alien eligible for cancellation of removal under section 
240A(a) of the Family Reunification Act of 2002 who is not 
eligible for cancellation under that section of the INA as it 
is currently appears will be able to file a motion to reopen to 
apply for cancellation within 1 year of the Attorney General's 
issuance of regulations implementing the Act. An alien may not, 
however, be admitted or allowed to enter the United States to 
file a motion to reopen or to apply for cancellation of 
removal, except at the Attorney General's discretion. An alien 
filing a motion to reopen to apply for cancellation of removal 
under section 240A(a) of the INA, as amended by this Act, will 
be required to describe or submit prima facie evidence 
sufficient to establish eligibility for cancellation under that 
section, as amended.
    Any hearings on eligibility for cancellation of removal 
under section 240A(a) of the INA, as amended, may be held in 
the United States or abroad. If the hearing is held abroad, the 
alien may appear before the Attorney General, Deputy Attorney 
General, or an official that either of those individuals may 
designate to receive evidence by video phone or similar device, 
but this provision does not preclude evidence being taken by 
any of those individuals abroad with the alien appearing in 
person. The Attorney General has discretion to grant or deny a 
motion to reopen to apply for cancellation, and that decision 
may not be reviewed by any court.
Section 9. Timeframe for Issuing Implementing Regulations
    The Attorney General will be required to issue an advanced 
notice of proposed rulemaking implementing the Family 
Reunification Act of 2002 within 60 days of the enactment of 
the Act, and to issue final implementing regulations within 90 
days of enactment. Those final regulations must take effect 
within 15 days of the issuance of the final implementing 
regulations.
Section 10. Sunset
    The Family Reunification Act of 2002 and its amendments 
sunset on December 31, 2005, or 3 years after the date on which 
final implementing regulations are issued, whichever is later.
Section 11. Annual Report
    The Attorney General is required to submit to the House and 
Senate Judiciary Committees an annual report on the amendments 
made by the Family Reunification Act of 2002. That report must 
include the number of aliens who applied for cancellation of 
removal, release from detention, or any other benefit based on 
the Act, and the number of those applications that were 
approved. That report must also contain a list of the crimes 
committed by the aliens who applied for cancellation of 
removal, release from detention, or other benefit under the 
act.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                    IMMIGRATION AND NATIONALITY ACT



           *       *       *       *       *       *       *
                            TITLE I--GENERAL

                              definitions

    Section 101. (a) As used in this Act--
    (1) * * *

           *       *       *       *       *       *       *

    (13)(A) * * *

           *       *       *       *       *       *       *

    (C) An alien lawfully admitted for permanent residence in 
the United States shall not be regarded as seeking an admission 
into the United States for purposes of the immigration laws 
unless the alien--
            (i) has abandoned or relinquished that status[,];
            (ii) has been absent from the United States for a 
        continuous period in excess of 180 days[,];
            (iii) has engaged in illegal activity after having 
        departed the United States[,];
            (iv) has departed from the United States while 
        under legal process seeking removal of the alien from 
        the United States, including removal proceedings under 
        this Act and extradition proceedings[,];
            [(v) has committed an offense identified in section 
        212(a)(2), unless since such offense the alien has been 
        granted relief under section 212(h) or 240A(a), or]
            (v) has committed outside the United States an 
        offense identified in section 212(a)(2), unless, since 
        such offense, the alien has been granted relief under 
        section 212(h) or 240A(a), or under section 212(c) 
        (before its repeal by section 304(b) of the Illegal 
        Immigration Reform and Immigrant Responsibility Act of 
        1996 (110 Stat. 3009-597));
            (vi) has committed in the United States an offense 
        identified in section 212(a)(2), and has been absent 
        from the United States for a continuous period in 
        excess of 30 days since committing such offense (or, if 
        the absence after the 30th day was beyond the alien's 
        control, for a continuous period in excess of 60 days), 
        unless, since such offense, the alien has been granted 
        relief under section 212(h) or 240A(a), or under 
        section 212(c) (before its repeal by section 304(b) of 
        the Illegal Immigration Reform and Immigrant 
        Responsibility Act of 1996 (110 Stat. 3009-597)); or
            [(vi)] (vii) is attempting to enter at a time or 
        place other than as designated by immigration officers 
        or has not been admitted to the United States after 
        inspection and authorization by an immigration officer.

           *       *       *       *       *       *       *

    (48)(A) * * *

           *       *       *       *       *       *       *

    (C) Any conviction entered by a court that otherwise would 
be considered a conviction under this paragraph shall continue 
to be so considered notwithstanding a vacation of that 
conviction, unless the conviction is vacated--
            (i) on the merits; or
            (ii) on grounds relating to a violation of a 
        statutory or constitutional right in the underlying 
        criminal proceeding.

           *       *       *       *       *       *       *


TITLE II--IMMIGRATION

           *       *       *       *       *       *       *


   Chapter 4--Inspection, Apprehension, Examination, Exclusion, and 
Removal

           *       *       *       *       *       *       *


                  APPREHENSION AND DETENTION OF ALIENS

    Sec. 236. (a) * * *

           *       *       *       *       *       *       *

    (c) Detention of Criminal Aliens.--
            (1) * * *
            [(2) Release.--The Attorney General may release an 
        alien described in paragraph (1) only if the Attorney 
        General decides pursuant to section 3521 of title 18, 
        United States Code, that release of the alien from 
        custody is necessary to provide protection to a 
        witness, a potential witness, a person cooperating with 
        an investigation into major criminal activity, or an 
        immediate family member or close associate of a 
        witness, potential witness, or person cooperating with 
        such an investigation, and the alien satisfies the 
        Attorney General that the alien will not pose a danger 
        to the safety of other persons or of property and is 
        likely to appear for any scheduled proceeding. A 
        decision relating to such release shall take place in 
        accordance with a procedure that considers the severity 
        of the offense committed by the alien.]
            (2) Release.--
                    (A) In general.--The Attorney General may 
                release an alien described in paragraph (1) 
                only in accordance with subparagraph (B) or 
                (C). A decision relating to release under this 
                paragraph shall take place in accordance with a 
                procedure that considers the severity of any 
                offense committed by the alien.
                    (B) Protection for witnesses, potential 
                witnesses, and persons cooperating with 
                criminal investigations.--The Attorney General 
                may release an alien described in paragraph (1) 
                if--
                            (i) the Attorney General decides 
                        pursuant to section 3521 of title 18, 
                        United States Code, that release of the 
                        alien from custody is necessary to 
                        provide protection to a witness, a 
                        potential witness, a person cooperating 
                        with an investigation into major 
                        criminal activity, or an immediate 
                        family member or close associate of a 
                        witness, potential witness, or person 
                        cooperating with such an investigation; 
                        and
                            (ii) the alien satisfies the 
                        Attorney General that the alien will 
                        not pose a danger to the national 
                        security of the United States or the 
                        safety of persons or property and is 
                        likely to appear for any scheduled 
                        proceeding.
                    (C) Permanent resident aliens eligible for 
                cancellation of removal.--The Attorney General 
                may release an alien described in paragraph (1) 
                if the alien demonstrates, by a preponderance 
                of the evidence, that the alien--
                            (i) has prima facie evidence 
                        sufficient to establish that the alien 
                        is eligible for cancellation of removal 
                        under section 240A(a); and
                            (ii) will not pose a danger to the 
                        national security of the United States 
                        or the safety of persons or property 
                        and is likely to appear for any 
                        scheduled proceeding.

           *       *       *       *       *       *       *


             CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS

    Sec. 240A. [(a) Cancellation of Removal for Certain 
Permanent Residents.--The Attorney General may cancel removal 
in the case of an alien who is inadmissible or deportable from 
the United States if the alien--
            [(1) has been an alien lawfully admitted for 
        permanent residence for not less than 5 years,
            [(2) has resided in the United States continuously 
        for 7 years after having been admitted in any status, 
        and
            [(3) has not been convicted of any aggravated 
        felony.]
    (a) Cancellation of Removal for Certain Permanent 
Residents.--
            (1) Permanent residents not convicted of any 
        aggravated felony.--The Attorney General may cancel 
        removal in the case of an alien who is inadmissible to, 
        or deportable from, the United States, if the alien--
                    (A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    (B) resided in the United States 
                continuously for 7 years after having been 
                admitted in any status; and
                    (C) has not been convicted of any 
                aggravated felony.
            (2) Permanent residents convicted of a nonviolent 
        aggravated felony.--The Attorney General may cancel 
        removal in the case of an alien who is inadmissible to, 
        or deportable from, the United States, if the alien--
                    (A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    (B) satisfies the residence requirements of 
                paragraph (6);
                    (C) has never been convicted of--
                            (i) an act of murder, rape, or 
                        sexual abuse of a minor;
                            (ii) any crime of violence (as 
                        defined in section 16 of title 18, 
                        United States Code); or
                            (iii) an attempt or conspiracy to 
                        commit an offense described in clause 
                        (i) or (ii);
                    (D) has been convicted of--
                            (i) a single aggravated felony for 
                        which the alien was sentenced to serve 
                        a term of imprisonment of 4 years or 
                        less;
                            (ii) multiple aggravated felonies 
                        arising out of a single scheme of 
                        criminal misconduct for which the alien 
                        was sentenced to serve, in the 
                        aggregate, a term of imprisonment of 4 
                        years or less; or
                            (iii) 2 aggravated felonies arising 
                        out of separate schemes of criminal 
                        misconduct for which the alien was 
                        sentenced to serve, in the aggregate, a 
                        term of imprisonment of 4 years or 
                        less, but for neither of which the 
                        alien was actually incarcerated;
                    (E) was not, in the commission of the 
                aggravated felony or felonies described in 
                subparagraph (D)--
                            (i) an organizer, leader, manager, 
                        or supervisor of others; or
                            (ii) engaged in a continuing 
                        criminal enterprise (as defined in 
                        section 408(c) of the Controlled 
                        Substances Act (21 U.S.C. 848(c)));
                    (F) has never been incarcerated for any 
                offense except--
                            (i) the offense described in clause 
                        (i) of subparagraph (D), or another 
                        offense that was committed in the 
                        course of the same scheme of criminal 
                        misconduct; or
                            (ii) an offense that was committed 
                        in the course of the scheme or schemes 
                        described in clause (ii) or (iii) of 
                        such subparagraph; and
                    (G) has not been the subject of a timely 
                certification described in paragraph (7) with 
                respect to the aggravated felony or felonies 
                described in subparagraph (D), unless such 
                certification has been revoked pursuant to such 
                paragraph.
            (3) Permanent residents convicted of an aggravated 
        felony classified as a crime of violence.--The Attorney 
        General may cancel removal in the case of an alien who 
        is inadmissible to, or deportable from, the United 
        States, if the alien--
                    (A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    (B) satisfies the residence requirements of 
                paragraph (6);
                    (C) has never been convicted of--
                            (i) an act of murder, rape, or 
                        sexual abuse of a minor; or
                            (ii) an attempt or conspiracy to 
                        commit an offense described in clause 
                        (i);
                    (D) has never been convicted of any 
                aggravated felony that resulted in death or 
                serious bodily injury to any person other than 
                the alien;
                    (E) has been convicted of--
                            (i) a single aggravated felony for 
                        which the alien was sentenced to serve 
                        a term of imprisonment of 2 years or 
                        less;
                            (ii) multiple aggravated felonies 
                        arising out of a single scheme of 
                        criminal misconduct for which the alien 
                        was sentenced to serve, in the 
                        aggregate, a term of imprisonment of 2 
                        years or less; or
                            (iii) 2 aggravated felonies arising 
                        out of separate schemes of criminal 
                        misconduct for which the alien was 
                        sentenced to serve, in the aggregate, a 
                        term of imprisonment of 2 years or 
                        less, but for neither of which the 
                        alien was actually incarcerated;
                    (F) was not, in the commission of the 
                aggravated felony or felonies described in 
                subparagraph (E)--
                            (i) an organizer, leader, manager, 
                        or supervisor of others; or
                            (ii) engaged in a continuing 
                        criminal enterprise (as defined in 
                        section 408(c) of the Controlled 
                        Substances Act (21 U.S.C. 848(c)));
                    (G) has never been incarcerated for any 
                offense except--
                            (i) the offense described in clause 
                        (i) of subparagraph (E), or another 
                        offense that was committed in the 
                        course of the same scheme of criminal 
                        misconduct; or
                            (ii) an offense that was committed 
                        in the course of the scheme or schemes 
                        described in clause (ii) or (iii) of 
                        such subparagraph; and
                    (H) has not been the subject of a timely 
                certification described in paragraph (7) with 
                respect to the aggravated felony or felonies 
                described in subparagraph (E), unless such 
                certification has been revoked pursuant to such 
                paragraph.
            (4) Permanent residents admitted before age 10.--
        The Attorney General may cancel removal in the case of 
        an alien who is inadmissible to, or deportable from, 
        the United States, if the alien--
                    (A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    (B) resided in the United States 
                continuously for 7 years after having been 
                admitted in any status when the alien was under 
                10 years of age;
                    (C) has never been convicted of--
                            (i) an act of murder, rape, or 
                        sexual abuse of a minor; or
                            (ii) an attempt or conspiracy to 
                        commit an offense described in clause 
                        (i); and
                    (D) has never been incarcerated for a third 
                (or succeeding) aggravated felony, except that 
                multiple felonies arising out of a single 
                scheme of criminal misconduct shall be 
                considered a single felony for purposes of this 
                subparagraph.
            (5) Permanent residents admitted before age 16.--
        The Attorney General may cancel removal in the case of 
        an alien who is inadmissible to, or deportable from, 
        the United States, if the alien--
                    (A) has been an alien lawfully admitted for 
                permanent residence for not less than 5 years;
                    (B) resided in the United States 
                continuously for 7 years--
                            (i) before the alien committed any 
                        aggravated felony; and
                            (ii) after having been admitted in 
                        any status when the alien was under 16 
                        years of age;
                    (C) has never been convicted of--
                            (i) an act of murder, rape, or 
                        sexual abuse of a minor; or
                            (ii) an attempt or conspiracy to 
                        commit an offense described in clause 
                        (i); and
                    (D) has never been incarcerated for a third 
                (or succeeding) aggravated felony, except that 
                multiple felonies arising out of a single 
                scheme of criminal misconduct shall be 
                considered a single felony for purposes of this 
                subparagraph.
            (6) Residence requirements for certain aliens.--In 
        the case of an alien seeking relief under paragraph (2) 
        or (3), the residence requirements described in this 
        paragraph are as follows:
                    (A) If the alien has been convicted of any 
                aggravated felony committed after the date of 
                the enactment of the Family Reunification Act 
                of 2002, the alien is required to have resided 
                in the United States--
                            (i) continuously for 7 years after 
                        having been admitted in any status and 
                        prior to the commission of such 
                        aggravated felony; or
                            (ii) continuously for 10 years 
                        after having been admitted in any 
                        status, except that, if the alien is 
                        incarcerated with respect to such 
                        aggravated felony, the period beginning 
                        on the date on which such aggravated 
                        felony was committed and ending on the 
                        last day of such term of incarceration 
                        shall be excluded in determining 
                        continuous residence under this clause.
                    (B) If the alien has not been convicted of 
                an aggravated felony committed after the date 
                of the enactment of the Family Reunification 
                Act of 2002, but has otherwise been 
                incarcerated for any aggravated felony, the 
                alien is required to have resided in the United 
                States--
                            (i) continuously for 7 years after 
                        having been admitted in any status and 
                        prior to the commencement of such term 
                        of incarceration; or
                            (ii) continuously for 10 years 
                        after having been admitted in any 
                        status, except that any term of 
                        incarceration for any aggravated felony 
                        shall be excluded in determining 
                        continuous residence under this clause.
                    (C) If the alien is not described in 
                subparagraph (A) or (B), the alien is required 
                to have resided in the United States 
                continuously for 7 years after having been 
                admitted in any status.
            (7) Certifications.--
                    (A) In general.--In the case of an alien 
                seeking relief under paragraph (2) or (3), not 
                later than 2 weeks after the alien files an 
                application for such relief, the Attorney 
                General may notify each agency that prosecuted 
                an aggravated felony referred to in paragraph 
                (2)(D) or (3)(E), as the case may be.
                    (B) Contents.--The notification shall 
                inform the agency that it has an opportunity--
                            (i) to certify to the Attorney 
                        General, not later than 60 days after 
                        the date on which the notification is 
                        mailed, that the alien has not 
                        truthfully provided to the agency all 
                        information and evidence the alien has 
                        concerning such felony or felonies, and 
                        any other offense or offenses that were 
                        part of the same scheme of criminal 
                        misconduct as such felony or felonies; 
                        and
                            (ii) on those grounds, to object to 
                        cancellation of removal.
                    (C) Provision to alien.--The Attorney 
                General shall mail any certification timely 
                made pursuant to subparagraph (B) with respect 
                to an alien to such alien. The alien shall have 
                an opportunity, during the 21-day period 
                beginning on the date on which the 
                certification is mailed, to truthfully provide 
                to the agency all information and evidence 
                which the agency certifies has not been 
                provided.
                    (D) Revocation of certification.--
                            (i) In general.--The agency may, 
                        during the 21-day period beginning 
                        after the end of the period described 
                        in subparagraph (C), revoke any 
                        certification made pursuant to 
                        subparagraph (B). Any revocation of a 
                        certification shall void such 
                        certification.
                            (ii) Untimely revocations.--A 
                        revocation under this subparagraph that 
                        is not timely made may be considered by 
                        the Attorney General in the Attorney 
                        General's discretion if it is made 
                        prior to the issuance of a final order 
                        of removal, but the absence of a timely 
                        revocation shall not be the basis for 
                        any continuance or delay of 
                        proceedings. Any determination to deny 
                        relief based in whole or in part on a 
                        revocation that is not made, or not 
                        timely made, shall not be subject to 
                        administrative or judicial review in 
                        any forum.
                    (E) Forms requirement.--The Attorney 
                General shall ensure that the consequences 
                under this paragraph of failing to provide 
                information or evidence with respect to 
                aggravated felonies are clearly explained in 
                any form promulgated by the Attorney General 
                that may be used to apply for relief under 
                paragraph (2) or (3).
                    (F) Construction.--This paragraph, and 
                paragraphs (2) and (3), shall not be construed 
                to require the Attorney General to notify any 
                agency under subparagraph (A). If the Attorney 
                General fails to send, or fails timely to send, 
                the notification described in such 
                subparagraph, the alien shall be deemed not to 
                be the subject of a certification.
            (8) Clarification with respect to certain 
        references.--Any reference in this subsection to a term 
        of imprisonment or a sentence with respect to an 
        offense is deemed to include the period of 
        incarceration or confinement ordered by a court of law, 
        regardless of any suspension of the imposition or 
        execution of that imprisonment or sentence in whole or 
        in part. However, a period of probation is not a term 
        of imprisonment or a sentence for purposes of this 
        subsection.
            (9) Limitation on delegation.--Cancellation of 
        removal under paragraph (2), (3), (4), or (5) may be 
        granted only by the Attorney General or Deputy Attorney 
        General. No delegation of such authority to any other 
        official may be made.

           *       *       *       *       *       *       *

    (d) Special Rules Relating to Continuous Residence or 
Physical Presence.--
            [(1) Termination of continuous period.--For 
        purposes of this section, any period of continuous 
        residence or continuous physical presence in the United 
        States shall be deemed to end (A) except in the case of 
        an alien who applies for cancellation of removal under 
        subsection (b)(2), when the alien is served a notice to 
        appear under section 239(a), or (B) when the alien has 
        committed an offense referred to in section 212(a)(2) 
        that renders the alien inadmissible to the United 
        States under section 212(a)(2) or removable from the 
        United States under section 237(a)(2) or 237(a)(4), 
        whichever is earliest.]
            (1) Termination of continuous period.--For purposes 
        of this section, any period of continuous residence or 
        continuous physical presence in the United States shall 
        be deemed to end, except in the case of an alien who 
        applies for cancellation of removal under subsection 
        (b)(2), when the alien is served a notice to appear 
        under section 239(a).

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                         TUESDAY, JULY 23, 2002

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present. Pursuant to notice, I now call up 
the bill H.R. 1452, the ``Family Reunification Act of 2001,'' 
for purposes of markup and move its favorable recommendation to 
the House. Without objection, the bill will be considered as 
read and open for amendment at any point.
    [The bill, H.R. 1452, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes to explain the bill.
    Immigration law prior to 1996 allowed too large a number of 
criminal aliens to seek relief from deportation. While relief 
was discretionary on behalf of an immigration judge, aliens 
could appeal denial of relief to Federal Court. During the 
early 1990's, applications for relief grew by the thousands and 
the percentage granted began to pass 50 percent. The public 
safety clearly could not allow immigration judges the 
unfettered level of discretion they possessed. Congress felt 
that reform was in order.
    In 1995 and 1996, this Committee and then the House passed 
the Immigration in the National Interest Act, providing that a 
permanent resident could not seek relief from deportation if he 
had been convicted of an aggravated felony for which he was 
sentenced to at least 5 years in prison.
    Some thought that the House had not gone far enough. The 
Washington Times published an editorial stating that, ``For 
some reason, the House conference staff is trying to strip the 
criminal alien deportation amendments won by Senator Spencer 
Abraham.'' Conference committee resulted in enactment of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 
1996. This legislation provided that permanent residents who 
had committed any aggravated felonies could not seek relief 
from deportation.
    IIRIRA has been a great success. Since 1996, the number of 
criminal aliens deported annually has almost doubled from about 
36,000 in fiscal 1996 to about 69,000 in fiscal 2000.
    However, a disturbing number of cases have arisen where 
permanent resident aliens have been deported for offenses for 
which many do not feel merit such a penalty. The first category 
involves aliens who committed crimes well before the 1996 
enactment of the law, that the act reclassified as aggravated 
felonies. Many of these aliens have fully reformed, raised 
families, and become productive members of their communities in 
the ensuing years.
    The second category involves aliens who have committed 
relatively minor crimes. Since an aggravated felony is now 
defined as any crime of theft or violence for which an alien is 
sentenced to a year or more in prison, or any drug trafficking 
offense however small, you can see that crimes as minor as a 
bar fight that resulted in a battery conviction with no jail 
time, in certain instances, now carry with them mandatory 
deportation for permanent residents.
    Another category involves aliens who were brought legally 
to the U.S. when young children and who now face deportation to 
countries that they no longer even remember, let alone speak 
the language. Remember, we're not talking here about illegal 
aliens who are tourists but permanent residents.
    Last Congress, the House agreed by a voice vote to a bill 
that provided that aliens who had committed criminal offenses 
prior to 1996 that were retrospectively classified as 
aggravated felonies in 1996 could still seek relief from 
deportation. This retroactivity fix passed the House under 
suspension of the rules but was killed in the Senate.
    In the 107th Congress, Mr. Frank introduced the bill we're 
marking up now. I couldn't support H.R. 1452 as originally 
introduced. It was more expansive than the legislation we 
passed last Congress. In fact, it provided criminal aliens with 
relief from deportation broader than available even before 
1996.
    However, I am pleased to say that Mr. Frank and I have 
worked out a compromise that strikes an appropriate and fair 
balance on the issue of relief from deportation for permanent 
resident aliens. It will give immigration judges the ability to 
spare these aliens from deportation in cases most of us would 
view as sympathetic. It would not give immigration judges the 
unfettered discretion they misused in the past.
    We will be offering this compromise as an amendment in the 
nature of a substitute.
    I now yield to the gentleman from Massachusetts, Mr. Frank.
    Mr. Frank. Mr. Chairman, I want to thank you both in the 
pro forma way that Members thank the Chair for recognition, and 
in a more profound way for your commitment of time and energy 
and thought to this legislation.
    I want to begin by being very clear that this is not, 
obviously, as the Chairman said, the bill I introduced. It is 
not the bill that I thought most called for.
    On the other hand, I want to say that as we have worked on 
it, and as I believe it will be later amended, in an amendment 
offered by the gentleman from California, it preserves the 
essence of what I think fairness requires. And it does it in a 
way that does not jeopardize public safety.
    What I believe we will have, at the end of this process, if 
it goes as I hope it will, is an authorization to the Attorney 
General--and it will be John Ashcroft, because we are dealing 
with a fixed period of time here--to decide on a case-by-case 
basis through his designees that, in particular situations, the 
law of 1996 worked a hardship, and here is the particular 
hardship.
    I must say, I am less concerned about this going forward. I 
think it is important to change the law somewhat going forward, 
but the major difficulties I have seen with this law affected 
people who were covered by it retroactively. Now, we have in 
our Constitution, of course, a strict prohibition against ex 
post facto laws. But it has been held that with regard to 
immigration matters and the right of noncitizens to remain in 
this country, that is not as fully enforced as it would be in a 
purely criminal proceeding against someone. That is, you can go 
back retroactively and change the immigration status.
    In some cases, that's perfectly appropriate. In others, it 
was not. And here's what we have, and I have many cases of 
this, and other Members have cases. Indeed, the impulse to 
begin changing this came in the previous Congress, when our 
former colleague from Florida, Bill McCollum, who had been a 
supporter of the 1996 law, encountered a case in his own 
District which he felt, and I agreed, worked an injustice.
    And here is the typical case that I hope would go to the 
Attorney General if we passed this law and which cannot now be 
dealt with. Someone, usually a man, but not entirely, at the 
age of 18, 19, 20, 22 years old, does something wrong, violates 
the law. It might have been for possession of a small amount of 
a narcotic, even marijuana. It might have been a bar fight, as 
the Chairman said. It might have been shoplifting. It might 
have been a domestic argument with a girlfriend that escalated. 
It might have been when someone had drunk too much and got into 
some difficulty.
    The individual was appropriately sentenced, served the 
sentence, then was able to change his life. Obviously, not 
every offender does, but a lot of people who commit first 
offenses that are not serious, in the sense of maiming someone 
or requiring a lot of planning to do wrong, they turn their 
lives around. Some of these people have entered drug rehab 
treatment programs. We put a lot of money out there, and 
encourage people, and provide legal mandates for people to get 
into drug rehab. They don't work as much as we'd like, but 
sometimes they work. And you have a situation, and I have had 
some of these in my District, and others have had them, and 
have called and talked to me, on both sides. Doug Ose from 
California, Lincoln Diaz-Balart from Florida have been involved 
in this effort.
    Someone gets in trouble at 19 to 20. Eight, 9, 10 years 
later, having straightened out his life, having started a 
family, has a couple of kids, he's working, all of a sudden, 
he's deported. And I'm talking now about people in that 
category who were deported who cannot now come back to this 
country unless we pass this bill.
    And if we pass the bill, by the way, everybody who is now 
subject to deportation will still be deportable. This does not 
make anybody undeportable. It simply gives discretion to the 
Attorney General, without, by the time we get through, judicial 
intervention, to decide that he can allow someone to return 
home. And I believe that the major class of beneficiaries 
retroactively will be people who have already been deported and 
could come back.
    Now, the question, by the way, is, none of these are 
illegal aliens. We're not talking about people who came here 
illegally. If they were, they would have been deportable for 
being illegal and none of this would have arisen. We're talking 
about legal permanent residents. We're talking, in many cases, 
about people who were brought here when they were quite young.
    And the question is asked, why didn't they become citizens? 
The answer is, nobody knows, including them. They should have 
been. In fact, one of the things that has happened is, and one 
of the reasons this is less important going forward is, more 
people now become citizens. They weren't aware of this 
vulnerability.
    I ask for 30 seconds, Mr. Chairman.
    Chairman Sensenbrenner. Without objection.
    Mr. Smith. Mr. Chairman, I'd like to move to strike the 
last word.
    Mr. Frank. I just asked for 30 seconds.
    Mr. Smith. I'm sorry. I didn't hear that.
    Mr. Frank. Thank you.
    These are people who could have become citizens. They were 
legal permanent residents. The class of people involved in the 
future I think will become citizens.
    But this is what this does. No one is undeportable, because 
of this. People who were sentenced to 2 years or 4 years if 
there was violence, 2 years if not, remain automatically 
deportable. And under the bill, it is the Attorney General, 
without judicial intervention--and that's particularly 
relevant, by the way, for the people who are already deported, 
because they're not here, they've got no access to courts.
    There is a separate class of cases, I should note, where 
the Supreme Court has held that if people pled guilty at a time 
when they would not be automatically deportable for that plea, 
they cannot be automatically deportable. This bill leaves that 
alone. That was the Supreme Court's decision.
    Chairman Sensenbrenner. The gentleman's time has again 
expired.
    Mr. Frank. In every other case, we simply give discretion 
to the Attorney General.
    [The prepared statement of Ms. Baldwin follows:]
Prepared Statement of the Honorable Tammy Baldwin, a Representative in 
                  Congress From the State of Wisconsin
    Thank you Mr. Chairman. I would like to express my support for this 
bill because I believe it would give the rigid 1996 immigration law a 
dose of common sense. One of my constituents is just one example of why 
these laws need to be re-examined. At the age of 3, he and his family 
moved to Madison, Wisconsin from Afghanistan to escape violence during 
the Soviet invasion. Now 22 years old, he has never visited his native 
country and has never learned its language or customs--he loves the 
United States and is not a citizen only because a parental 
misunderstanding about the law. His father mistakenly thought that his 
son automatically became and American citizen when his mother became a 
citizen in 1981. This past May, a federal immigration judge ordered my 
constituent to be deported back to Afghanistan because he was caught 
with about 12 grams of marijuana. While my constituent needs to face 
the consequences of his actions, immediate deportation seems to be a 
bit harsh in this instance. One can only imagine the kind of life he 
may face going back to a country where he has no friends and doesn't 
speak the language. A country which is in the front line our war 
against terrorism. This is just one example of hundreds that supports 
the need to improve upon the 1996 law. I ask my colleagues to support 
this bill.

    Chairman Sensenbrenner. Are there amendments?
    The Chair offers an amendment in the nature of a 
substitute----
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner.--which the clerk will report.
    The Clerk. Amendment in the nature of a substitute to H.R. 
1452, offered by Mr. Sensenbrenner and Mr. Frank.
    Chairman Sensenbrenner. Without objection, the amendment in 
the nature of a substitute is considered as read and open for 
amendment at any point.
    [The amendment follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. And the Chair recognizes himself 
for 5 minutes.
    I am pleased to offer this amendment in the nature of a 
substitute, along with the gentleman from Massachusetts. It 
reaches a delicate and fair compromise that keeps the 
beneficial reforms from 1996 while letting a select group of 
legal permanent residents request discretionary relief from an 
immigration judge.
    Pre-1996, a deportable permanent resident alien could seek 
relief from deportation, unless the alien had been in prison 
for more than 5 years or 5 years for an aggravated felony.
    As I mentioned in my opening statement, in 1995 and 1996, 
this Committee and the House approved reform which broadened 
the number of crimes considered aggravated felonies and 
provided that to seek relief, a permanent resident could not 
have been sentenced to 5 years for an aggravated felony. That's 
sentenced not served.
    Legislation that was finally enacted in 1996 broadened the 
definition of aggravated felony and provided that a permanent 
resident could not seek relief if he or she committed any 
aggravated felony.
    The compromise that Mr. Frank and I offer today reaches a 
middle ground between the pre-1996 law and the current law that 
is not so far removed from what the Committee approved in 1995. 
This compromise sets forth four avenues of relief from removal 
for permanent residents who have been convicted of a crime.
    First, a nonviolent aggravated felon can seek relief if: 
one, he has been a permanent resident for at least 5 years; 
two, has resided in the United States continuously for at least 
7 to 10 years; and, three, was convicted in connection with a 
single scheme of misconduct for which the alien received a 
sentence of less than 4 years or two schemes of misconduct for 
which the alien received a sentence of less than 4 years but 
was never actually in prison; and, four, was not an organizer 
or leader of the aggravated felony or felonies. If the alien 
has served jail time in connection with any other offense, he 
is ineligible for this relief. In addition, a criminal 
prosecutor may block such relief if the alien has failed to 
provide the prosecutor with all the information he possesses 
about the offense.
    Second, an alien convicted of a violent aggravated felony 
may similarly seek relief, but the requirement of not having 
been sentenced to 4 years or more is reduced to 2 years or 
more, and the crime could not have resulted in serious bodily 
injury or death.
    Third, an alien who legally arrived in the United States 
before age 10 can seek relief if the alien has: one, been a 
permanent resident for at least 5 years; two, has resided in 
the United States continuously for at least 7 years after 
having arrived in the U.S.; and, three, has not been in prison 
for aggravated felonies arising out of more than two patterns 
of criminal conduct.
    Fourth, an alien who legally entered the United States 
before age 16 can apply for relief in the same manner as those 
aliens who arrived before age 10, except that such aliens are 
barred from relief if they commit any aggravated felony within 
their first 7 years in the United States.
    An alien who is ineligible for relief as a result of the 
1996 immigration legislation but would be eligible for one of 
these four forms of relief can move to reopen his or her case 
within 1 year of the Attorney General's issuance of 
regulations. While aliens who have already been deported may 
move to reopen to apply for relief, those aliens must apply 
from abroad and can only reenter the United States if they are 
actually granted relief.
    This compromise also provides that an immigration judge may 
release a permanent resident from detention if the alien can 
demonstrate that he or she is prime facie eligible for one of 
the four forms of relief described above; would not pose a 
danger to persons, property, or national security; and would 
likely appear at all future proceedings.
    I urge my colleagues to support this amendment and yield 
back the balance of my time.
    Does the gentleman from Texas wish to move to strike the 
last word?
    Mr. Smith. Yes, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Chairman, while this amendment in the nature of a 
substitute is an improvement over the underlying bill, that's 
like saying a flat tire is better than no tire at all. Neither 
is very helpful in the long run.
    I know the intent is to keep low-level drug offenders and 
those who commit minor crimes from being deported, but this 
bill goes far beyond low-level drug users. The substitute 
amendment allows immigration judges to let drug dealers, drug 
traffickers, and even smugglers of aliens who may be terrorists 
remain in our country.
    This bill also goes far beyond removing the retroactive 
application of the aggravated felony definition Congress 
overwhelmingly approved in the Immigration Reform Act of 1996. 
Creating a process to allow convicted and deported aggravated 
felons back into the country is unprecedented.
    Criminal aliens released prior to being deported have a 37 
percent rate of recidivism. How do we explain to the victims 
why we let these criminals stay in the country or be 
readmitted?
    In many instances, we are talking about the lives of young 
people that are being destroyed daily by drugs. Who really 
believes that dealing cocaine is a nonviolent, minor crime?
    A few days ago, Fox News documented Mexican smugglers who 
smuggled Middle Eastern radical Muslims into the country. Alien 
smuggling is usually considered a nonviolent crime and 
sentences rarely exceed 4 years. So under this amendment in the 
nature of a substitute, alien smugglers who serve their time in 
prison could go right back to bringing terrorists into the 
country. I thought America was at war against terrorism.
    Under this amendment in the nature of a substitute, we have 
no idea how many alien criminals would remain in the U.S. or 
how many who have been deported would be readmitted.
    If you invited a guest to your home, and that guest stole 
your jewelry, or used your child in pornography, or gave drugs 
to your teenager, you would ask them to leave. That is why we 
should continue to do so with criminal aliens who have been 
convicted of serious crimes.
    Mr. Chairman, no one here doubts that immigration lawyers 
across the country have been scouring the land for so-called 
hardship cases, and they've been doing so since the 1996 
immigration reform bill was overwhelmingly approved 6 years 
ago. Yet all those attorneys in all those years can only point 
to several dozen examples. And actually, that's giving them a 
few. I've only heard of about a dozen, and I'm not sure all of 
them could really withstand scrutiny.
    The genuine hardship cases need to be addressed, but they 
should be considered under regular order by the Immigration 
Subcommittee, and that's why we need to oppose this amendment 
in the nature of a substitute.
    Mr. Chairman, one more point. The Members of this Committee 
have received a ``Dear Colleague'' and an e-mail citing so-
called hardship cases. The first ``Dear Colleague'' mentioned 
seven hardship cases, but only one of the seven had actually 
been deported. The e-mail mentioned 15 hardship cases, but by 
their own definition, half of them were misdemeanors, so they 
wouldn't be deported. The others are not deportable crimes, 
unless the individuals involved have long criminal histories.
    And, again, if there are genuine hardship cases, and I know 
there are a very few, it's the Immigration Committee that 
should take care of them, not the Attorney General.
    Mr. Frank. Would the gentleman yield?
    Mr. Smith. And I'll yield back the balance of my time.
    Mr. Frank. Would the gentleman yield?
    Mr. Smith. I'd prefer that the gentleman use his own time.
    Ms. Jackson Lee. Mr. Chairman?
    Mr. Frank. Mr. Chairman? On the substitute, Mr. Chairman.
    Chairman Sensenbrenner. Recognized for 5 minutes.
    Mr. Frank. The question I had hoped to ask the gentleman 
from Texas was, and I want to clarify it, when he said--he 
acknowledges there were some hardship cases. He said they could 
be dealt with through the Immigration Subcommittee. I think we 
should make clear, the only thing he could be referring to are 
private bills. And I must say, the notion of doing major 
immigration policy by private bills seems to me to be in error. 
Of course, they do take unanimous consent, and they can be very 
difficult.
    And what this Committee began to do years ago was to say, a 
private bill that is unique, we will deal with it. But where 
there appears a class of cases, it is better to deal with it 
through legislation. So I do not think the existence of the 
private bill remedy is a real relief. In fact, the gentleman 
from Florida, Mr. McCollum, had tried to do that, and that's 
what led the then-Chairman of the Committee, the gentleman from 
Illinois, to say, well, let's do a bill.
    Secondly, the gentleman from Texas asked a question: How 
many terrorists would be let in under this bill? How many 
people would be let in who would smuggle in terrorists? The 
answer is exactly as many as John Ashcroft decided, because 
under this bill, it will be entirely up to John Ashcroft, both 
in terms of the authority that's given to the Attorney General 
and according to the timeframe. This is a sunsetted bill.
    And with regard to the people who have already been 
deported, this ought to be made very clear, with regard to the 
people who have already been deported, they will have 1 year 
from the date of the regulations to make their application. So 
this will almost certainly be done within the Attorney 
Generalship of John Ashcroft.
    Now, obviously, I would rather there be a different 
Attorney General, as he would rather there would be a different 
Member of Congress from my District. Nothing personal. 
[Laughter.]
    But the fact is that he is there, and the suggestion that 
John Ashcroft is going to make the decision to bring in these 
people--and if they've already been deported, by the way, 
there's no access to a judge. They're not in America. They 
can't get any rights that we don't give them. We give them the 
right to apply to John Ashcroft on a compassionate basis.
    So, yes, the gentleman is right, these should be case-by-
case. But I do think letting the Attorney General do it is a 
better way, since he acknowledges there are cases where it 
should happen, then doing it by private bill.
    I yield back, Mr. Chairman.
    Chairman Sensenbrenner. We now have a journal vote. The 
Committee will be recessed, so Members can vote on the journal 
vote. Please come back promptly.
    The Committee is recessed subject to the call of the Chair.
    [Recess.]
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    Pending when the Committee recessed was an amendment in the 
nature of a substitute offered by the Chairman and the 
gentleman from Massachusetts, Mr. Frank.
    Does the gentlewoman from Texas wish to move to strike the 
last word?
    Ms. Jackson Lee. Yes, Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Let me, first of all, applaud Mr. Frank of Massachusetts 
and the Chairman of this Committee for a combined effort that I 
think all of us will view as a very reasonable response to an 
issue that we've been grappling with since 1996. In fact, if I 
might recall our history, one of our colleagues that no longer 
serves on this Committee or in this body, Mr. McCollum, I know 
worked very hard, either in the last part of his tenure here 
and/or since that time, to raise this concern as it relates to 
individuals who really do deserve a second opportunity, who 
happen to have been either a legal immigrant or a legal 
immigrant status here in this country. And I say that because 
we have found that cases where individuals had never even been 
to their home country were being deported under the 1996 law 
with all good intentions, but in fact, really did not have the 
opportunity to have their individual cases assessed.
    I think it is important to note that 1452, one, has 
Attorney General involvement. I think Mr. Frank was eloquent; 
we can't choose our Attorney Generals to a certain extent. But 
it has the Attorney General's involvement and, therefore, we 
have that kind of protection.
    In addition, the immigration judge has the option to decide 
on an individual's status.
    Might I say that there were amendments that I intended to 
offer, because I believe that we have missed making this even 
more final as it relates to hardship cases. And this is what 
we're talking about.
    But I would like to offer into the record, Mr. Chairman, as 
I discuss this legislation, ``Case Is Closed on Immigrant,'' in 
the Houston Chronicle newspaper, Saturday, July 20, 
Metropolitan Section.
    Chairman Sensenbrenner. Without objection.
    [The material referred to follows:]
    
    
    Ms. Jackson Lee. Let me just introduce you to Jose Lazo, 
who is a nationally known spokesperson for ex-Enron employees, 
faces almost certain deportation to El Salvador after a judge 
declined Friday to reopen his case.
    Now, when I say the words ``sexual assault,'' many of you 
will run out of the room. Let me explain it and indicate to you 
that the gentleman never served a day in jail. He was a 
juvenile and impregnated a 13-year-old, and you realize what 
that accounts for. The 13-year-old ultimately became his wife.
    He graduated from high school, was such a bright up-and-
coming student that he went straight to Enron--we'll put aside 
any other connotations--and began to earn $40,000 a year and 
supported his family and his child.
    What happened, Mr. Frank, is that he pleaded to a deferred 
adjudication. Never served a day in jail. We all know what that 
means. Be on good behavior, and you're off the hook. And this 
gentleman continued with good behavior, maybe a little domestic 
scenario.
    And then when he was laid off, he got another job, he was 
so good at what he did, and organized the ex-Enron employees. 
I'm not sure if that's why he got into court or not.
    But he was ruled against not by an immigration judge. He 
was ruled against by a State district judge who had no 
information, and the INS said there was nothing they could do 
for this gentleman.
    I'd be happy to yield to the gentleman.
    Mr. Frank. I thank the gentlewoman. I appreciate her not 
offering this, and I would hope we could move on. But I do 
appreciate the gentlewoman. She has been very staunch in her 
role as the Ranking minority Member in our getting this 
forward. I want to express my appreciation.
    Ms. Jackson Lee. Thank you very much.
    And as I close, I simply want to leave this on the table as 
why we need this legislation, to help forward-thinking and 
positive-thinking individuals who have rehabilitated their 
lives and they just happen to be immigrants.
    I yield back.
    [The statement of Ms. Jackson Lee follows:]
    
    
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Issa.
    Mr. Issa. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment offered by Mr. Issa to the amendment 
in the nature of a substitute offered by Mr. Sensenbrenner and 
Mr. Frank. Page 13, line 18, strike the quotation marks and the 
period at the end. Page 13----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. And the gentleman from California 
will be recognized for 5 minutes.
    Mr. Issa. Thank you, Mr. Chairman.
    My amendment is an attempt to perfect this bill by taking 
both sides' objections and trying to find legitimate middle 
ground.
    Mr. Frank and the Chairman himself have done a great deal 
to make what is a very tough situation and one which has 
historically been hard for this Committee to decide and find 
compromise.
    My amendment offers a couple more pieces of compromise. In 
particular, what it does is it limits to the Attorney General 
and the Deputy Attorney General the right, and prohibits any 
further delegation, to make these exceptions for humanitarian 
reasons. I do so because I believe that although having no 
exceptions is a mistake, having too many exceptions would also 
be a mistake.
    And I believe that with proper staffing, the Deputy 
Attorney General could handle the load that exists on an 
exception basis, because I believe, as Ms. Jackson Lee and 
others have said, there are legitimate exceptions to 
deportation of those who have committed crimes in this country, 
just as there are good examples of people who have done things 
wrong in our country and have been rehabilitated and gone on to 
live useful lives.
    Additionally, I have chosen the date of December 31st, 
2005, and I believe there will be a friendly amendment offered, 
as the expiration date, because I believe that a sunset clause 
for this kind of a solution is necessary, not because there 
doesn't have to be an out clause, but because like any piece of 
legislation that we are trying to correct a past ill, we have 
to study and review the effects of our action and then bring it 
back to this Committee to see if in fact what we have done is 
perfecting or whether there will need to be additional changes.
    Mr. Frank. Will the gentleman yield?
    Mr. Issa. I'd be glad to yield.
    Mr. Frank. I want to thank the gentleman for his help on 
this.
    And, Mr. Chairman, let me be very explicit. I wish a lot of 
things. I wish I had as much energy today as I had 20 years 
ago. I wish I could eat more and not gain weight. And I wish I 
had the power to pass bills exactly as I want. But I don't.
    So I rest more than I used to. I go hungry sometimes. And I 
accept this amendment. [Laughter.]
    All of them accommodations to reality. But I don't want to 
be grudging. I do not think that the amendment in any way 
diminishes the substance of the bill. I think it preserves what 
we were hoping to preserve. I am very appreciative for the 
bipartisan support, particularly given the times.
    I just would close with one plea to the Members. There are 
individuals out there hurting. There are innocent children who 
have been separated from their parents.
    I do not think we have to worry that John Ashcroft and his 
top deputies will abuse the authority we give them. And I think 
some families will be better off.
    And I thank the gentleman for yielding.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Issa. Reclaiming my time, I yield to the gentlelady 
from Texas.
    Ms. Jackson Lee. I want to applaud him for the amendment 
and the acceptance of my friendly amendment. I probably asked 
the gentleman to yield to me so that I can ask the Chairman a 
question, so that we can move this along.
    Do I have to wait or can I offer my friendly amendment that 
I believe the gentleman will accept now to his amendment? It is 
an amendment to his amendment.
    Mr. Issa. Mr. Chairman, this is one that says it's 3 years 
from enacting, the sooner of the two.
    Chairman Sensenbrenner. Without objection, the Issa 
amendment is so modified to state that the sunset is 3 years 
from the date of enactment.
    Ms. Jackson Lee. And do I need to have it passed out, Mr. 
Chairman?
    Chairman Sensenbrenner. Hearing none, so ordered. And the 
modification is made.
    Mr. Issa. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. Yield back?
    Mr. Issa. I yield back.
    Chairman Sensenbrenner. The question is on the Issa----
    Mr. Smith. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Texas seek recognition?
    Mr. Smith. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Smith. Mr. Chairman, I know this amendment is well-
intended, but I oppose it primarily because it gives a false 
sense of security.
    First, sunsets seldom work. In fact, I don't know of a 
single sunset in an immigration bill that has ever been 
enforced. Examples of sunsets not enforced included visa 
programs, pilot programs, and visa waiver programs. This 
amendment also creates an administrative burden by requiring 
the Attorney General to approve any waiver. Even if the 
Attorney General set up a panel to review the hardship cases 
before they reached his desk, it is still unreasonable to 
expect him personally to devote the time and attention 
necessary.
    If there are true hardship cases, and I know there are a 
few, they should be addressed. But they should follow the 
regular order, and we should have the Immigration Subcommittee 
review them. They should not be piled up on the AG's desk.
    Further, the requirement that the Attorney General report 
to Congress is unenforceable. When I was Chairman of the 
Immigration Subcommittee, the Administration regularly ignored 
congressional directives for immigration reports, and there's 
little you can do about it, as any Subcommittee Chairman knows.
    No Administration is going to issue a report detailing what 
crimes have been waived or what additional crimes have been 
committed by the criminals after they have been released. Even 
if this Administration issued every report we asked for, there 
is no guarantee that future Administrations would be 
responsive. Another Administration might be tempted to abuse 
the waiver process.
    This amendment is not enforceable and would be ignored.
    Unfortunately, Mr. Chairman, both sunsets and reports drop 
below the horizon. A false sense of security is no security. 
This amendment should not be approved, but if it is, we should 
still vote no on final passage, and the reason is this: Every 
Member of this Committee knows that many hardened criminals are 
sentenced to less than 4 years of jail for nonviolent crime or 
less than 2 years for a violent crime, the thresholds of the 
amendment in the nature of a substitute. Most first time 
defendants plea bargain for probation or a small fine. If 
convicted and sentenced, the jail time is typically less than a 
year. Any longer and there's a lot more to the case than meets 
the eye.
    The reason to vote no on final is because of what this 
amendment in the nature of a substitute suggests, that 
criminals sentenced to less than the 4 or 2 year levels are 
somehow only guilty of minor offenses and should be considered 
for relief from deportation or even readmitted to the U.S. 
That's the wrong signal to the wrong people at the wrong time.
    So, Mr. Chairman, I would say to my colleagues, regardless 
of how they vote on the amendment, I hope they will vote no on 
final, and I'll yield back the balance of my time.
    Chairman Sensenbrenner. The modification of the gentlewoman 
from Texas, Ms. Jackson Lee, reads as follows: ``or 3 years 
after the date on which a final rule implementing this act is 
promulgated, whichever occurs later.''
    Without objection, the amendment is modified to reflect 
this language.
    [The amendment follows:]
    
    
    The question is on the Issa amendment as modified.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment as modified is agreed to.
    The question now is on the amendment in the nature of a 
substitute as amended.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment in the nature of a substitute is agreed to. The Chair 
notes the presence of a reporting quorum.
    Mr. Smith. Mr. Chairman, I'd like a recorded vote on the 
final.
    Chairman Sensenbrenner. Just a minute.
    All those in favor of reporting the bill favorably will say 
aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it.
    Mr. Smith. Mr. Chairman, I'd like a recorded vote.
    Chairman Sensenbrenner. A recorded vote is ordered. Those 
in favor of reporting H.R. 1452 favorably as amended will, as 
your names are called, answer aye.
    Those opposed, no.
    And the clerk will call the roll.
    The Clerk. Mr. Hyde?
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde, aye. Mr. Gekas?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    Mr. Barr. No.
    The Clerk. Mr. Barr, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. Yes.
    The Clerk. Mr. Cannon, yes. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. Yes.
    The Clerk. Mr. Issa, yes. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. Mr. Frank, aye. Mr. Berman?
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there Members in the chamber 
who wish to cast or change their votes?
    The gentleman from Pennsylvania, Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Graham.
    Mr. Graham. No.
    The Clerk. Mr. Graham, no.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote?
    If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 18 ayes and 15 nays.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute incorporating the amendments adopted here today. 
Without objection, the Chairman is authorized to move to go to 
conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes. 
And all Members will be given 2 days, as provided by House 
rules, in which to submit additional, dissenting, supplemental, 
or minority views.
                            Dissenting Views

    The original intent of this bill was to keep low-level drug 
offenders and those who commit minor crimes from being 
deported. This bill, however, goes far beyond addressing ``low-
level'' drug dealers and allows immigration judges to let drug 
dealers, drug smugglers, and even smugglers of aliens who may 
be terrorists remain in our country.
    This bill also goes far beyond removing the retroactive 
application of the aggravated felony definition Congress 
overwhelmingly approved in the Immigration Reform Act of 1996. 
Creating a process to allow convicted and deported aggravated 
felons back into the country is unprecedented.
    Criminal aliens released prior to being deported have a 37% 
rate of recidivism. In 2000, there were over 36,000 noncitizens 
incarcerated in Federal prisons--20,000 for drug crimes. We 
cannot justify to victims why we let these criminals stay in 
the country or, worse, be readmitted. In many instances, we are 
affecting the lives of young people that are being destroyed 
daily by drugs. Dealing cocaine or crack should hardly be 
considered a non-violent, minor crime.
    For example, Mexican smugglers have been documented in 
recent weeks and months smuggling Middle Eastern radical 
Muslims into the country. Alien smuggling is usually considered 
a nonviolent crime and sentences rarely exceed 4 years. Under 
this bill, alien smugglers who serve their time in prison could 
go right back to bringing terrorists into our country. America 
is supposed to be at war against terrorism, not welcoming 
terrorists into the country.
    The most dangerous part of this bill is that there is no 
way to tell how many alien criminals would remain in the U.S. 
or how many who have already been deported would be readmitted.
    If an invited houseguest stole jewelry, or used your child 
in pornography, or gave drugs to your teenager, the response is 
obvious. They would be asked to leave. That is what we should 
continue to do with criminal aliens who have been convicted of 
these or other serious crimes.
    Since the 1996 Immigration Reform bill was overwhelmingly 
approved 6 years ago, immigration lawyers across the country 
have been scouring the land for so-called ``hardship'' cases. 
Yet, in all those years, they can only point to several dozen 
examples, few of which would be likely to withstand scrutiny.
    There are several provisions that were added when the bill 
was marked up at full committee that give a false sense of 
security to this legislation. First, a provision was added to 
sunset the bill. However, sunsets seldom work. In fact, I don't 
know of a single sunset in an immigration bill that has ever 
been enforced. Examples include visa programs, pilot programs, 
and other visa waiver programs.
    A provision was also added to require the Attorney General 
to approve every waiver. This creates an unreasonable 
administrative burden. Even if the Attorney General set up a 
panel to review the hardship cases before they reached his 
desk, it is still unreasonable to expect him to devote the time 
and attention necessary.
    If there are true ``hardship'' cases, they should be 
addressed. But they should follow the regular order and be 
reviewed by the Immigration Subcommittee. They should not be 
piled up on the Attorney General.
    Further, a requirement was added for the Attorney General 
to report to Congress. However, this will be unenforceable. The 
last Administration regularly ignored congressional directives 
for immigration reports. And as any Subcommittee Chairman 
knows, there's little that can be done about it. In addition, 
no Administration is going to issue a report detailing what 
crimes have been waived or what additional crimes have been 
committed by the criminals after they have been released. Even 
if this Administration issued every report we asked for, there 
is no guarantee that future Administrations would be 
responsive.
    These provisions only provide a false sense of security--
which is no security at all.

                                   Lamar Smith.
                                   Elton Gallegly.
                                   Bob Goodlatte.
                                   Spencer Bachus.
                                   John N. Hostettler.
                                   J. Randy Forbes

                                
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